We Don't Have a Crystal Ball, But... Observations On Next Steps in Federal Legislation and Regulation on Title IX, the Clery Act, and the Broader Higher Education Act March 6, 2018 This presentation is copyrighted by PaperClip Communications 2017. This presentation may not be reproduced without permission from PaperClip Communications and its presenters. This presentation and all materials provided during the presentation may not be altered. This presentation is not intended as legal advice and should be considered general information only. The answers to legal questions generally hinge upon the specific facts and circumstances of an institution. Individuals with specific questions should contact their institution’s legal counsel. The opinions expressed during today’s event are not necessarily those of PaperClip Communications. #PaperClipTopic

Presenter Joseph C. Storch Associate Counsel and Chair of the Student Affairs Practice Group, State University of New York Executive Editor of the Student Affairs Compliance Report & Analysis joestorch@gmail.com @JosephStorchNY

The Future Of Campus Safety Law

Title IX and Clery Clery Act Title IX VAWA Unequal pay Primary Crimes Sexual harassment Drug, alcohol and weapons Sexual Violence reporting & response Emergency notification Admissions/financial aid Missing persons Athletics Judicial policies Funding, housing, academic resources Timely warnings Pregnancy discrimination

Title IX Timeline 1972 Title IX passes into law (broadly written) January 2001 Revised Sexual Harassment Guidance (Notice and Comment Rulemaking); Update of 1997 Guidance (very little difference except impact of intervening cases) October 2010: Department of Education Dear Colleague Letter on Bullying April 2011: Department of Education Dear Colleague Letter on Sexual Harassment and Sexual Violence April 2014: OCR Clarifications April 2015: OCR Guide for TIXC September 2017: OCR DCL and Q&A (don’t call it guidance!)

Title IX: Speaking of the 2017 DCL

Title IX: Speaking of the 2017 DCL

Title IX: Speaking of the 2017 DCL? What Changed? Not a whole lot; many requirements reverted to 2001 regulatory guidance 2011 DCL and 2014 DCL withdrawn 2001 regulations and 2015 DCL remain

Title IX: Speaking of the 2017 DCL? What Changed? Not a whole lot; many requirements reverted to 2001 regulatory guidance 2011 DCL and 2014 DCL withdrawn 2001 regulations and 2015 DCL remain 60 days -> good faith effort for timely action

Title IX: Speaking of the 2017 DCL? What Changed? Not a whole lot; many requirements reverted to 2001 regulatory guidance 2011 DCL and 2014 DCL withdrawn 2001 regulations and 2015 DCL remain Ban on mediation in sexual assault lifted, but 2001 Notice and Comment Guidance still prohibit

Title IX: Speaking of the 2017 DCL? What Changed? Not a whole lot; many requirements reverted to 2001 regulatory guidance 2011 DCL and 2014 DCL withdrawn 2001 regulations and 2015 DCL remain Flexibility on interim measures tailored to case

Title IX: Speaking of the 2017 DCL? What Changed? Not a whole lot; many requirements reverted to 2001 regulatory guidance 2011 DCL and 2014 DCL withdrawn 2001 regulations and 2015 DCL remain Due process style requirements

Title IX: Speaking of the 2017 DCL? What Changed? Not a whole lot; many requirements reverted to 2001 regulatory guidance 2011 DCL and 2014 DCL withdrawn 2001 regulations and 2015 DCL remain Preponderance or Clear and Convincing

Title IX: Speaking of the 2017 DCL? What Changed? Not a whole lot; many requirements reverted to 2001 regulatory guidance 2011 DCL and 2014 DCL withdrawn 2001 regulations and 2015 DCL remain Appeal to both or one party (but see Clery/VAWA mutual appeal requirement)

Title IX: Proposed Regulations Department announced that it will issue proposed regulations (latest estimate is March 2018). Not Negotiated Rulemaking. Notice and Comment, final rule expected ? Anticipate significant interest and comment.

Title IX: Proposed Regulations Anticipate significant interest and comment.

Title IX: Proposed Regulations

Title IX: Proposed Regulations Expectations (no guarantees): Reduction of mandatory requirements including process specifics. Emphasis on law enforcement. Emphasis on due process/fair process. No requirement on using/publishing specific standard of evidence (but I do not expect a requirement to use clear and convincing). Allow use of mediation with requirements. Provide “flexibility” to institutions in implementation.

Clery Act Title IX VAWA Unequal pay Primary Crimes Sexual harassment Drug, alcohol and weapons Sexual Violence reporting & response Emergency notification Admissions/financial aid Missing persons Athletics Judicial policies Funding, housing, academic resources Timely warnings Pregnancy discrimination

Clery Act History Initially added to HEA in 1990 (amended many times since, most recently 2008 HEOA and 2013 VAWA) First Handbook, 2005 (200 pages) Second Handbook, 2011 (288 pages). Latest Handbook in 2016 (265 pages, but…) https://www2.ed.gov/admins/lead/safety/h andbook.pdf

Clery Act Handbook Latest Handbook, 2016 https://www2.ed.gov/admins/lead/safety/ handbook.pdf Joseph Storch and Andrea Stagg, The 2016 Clery Handbook: New Developments and Important Changes, University Risk Management and Insurance Association White Paper (July 21, 2016). http://tinyurl.com/2016cleryhandbook

Thinking about prevention and response: Why VAWA Helps

Thinking about prevention and response: Why VAWA Helps

Thinking about how we prevent vs.

Prosper Act House HEW Committee Advanced on party-line vote Significant changes across higher ed Meaningful efficiency changes to Clery (not without controversy) Dangerous First Amendment language

PROSPER: Changes on Campus Safety Timely Warnings (fix) Preventing Interference With Criminal Justice System (new, sort of) Uniform Definitions (fix) Due Process (minor changes but mostly tweaks compared to current law) Standard of Evidence (restatement of current law) Education Training Module (new, good luck)

PROSPER: Changes on Campus Safety Campus Climate Surveys (new) Survivors’ Counselors (new) Know Your Rights Form (newish) MOUs With Local Law Enforcement (new and improved)

PROSPER Troubling Aspects: First Amendment Speech (and new Speech Czar). First Amendment Religion (access for religious groups). First Amendment Association (single-sex organizations).

PROSPER Other Changes: Anti Drug and Alcohol Anti Hazing Goodbye P2P Requirements (must have a policy saying copyright violations are forbidden). Lots of technical cleanup. Other major changes to financial aid (outside scope of this presentation).

Senate Version: TBD, But

Senate Version: TBD, But Much more requirement to work across the aisle. Final version will require 60 votes in the Senate. Likely to reflect many of the policy requirements (in concept if not in language) of House PROSPER. Senate staff on PROSPER, but… Impact of election year.

Senate Version: CASA? McCaskill, Gillibrand, and others proposed CASA. Certain concepts/elements incorporated into PROSPER (technical and language differences).

Clery and TIX Changes Some general thoughts Impact of state law Prevention > response > compliance

Q&A Session How Do I Ask a Question of the Panelist(s)? Write in a question or comment anytime during the webinar by using the Q&A panel at the bottom of the screen. For Questions that Arise After the Conference If you have a question that you were unable to ask during the webinar, please feel free to email the presenters directly or email info@paper-clip.com.

5 Takeaways from Today: 11111 22222 33333 44444 55555

Resources and References Please provide all resources, additional sites or books/studies/statistics you sited here

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