After three months of hard work, negotiators agreed by consensus to a proposed rule to implement the VAWA amendments to the Clery Act (also known as Campus SaVE). This is a victory for improving campus safety – it takes these regulations to implement the new provisions in VAWA. The six sessions haven’t been without disagreement. If you’ve been following the liveblog you know that divisions were deep at times and that consensus seemed potentially out of reach. You can read about some of the compromises made by the group during the final sessions in the transcript below.
AAUW is gratified negotiators moved this rule forward – it will guide colleges and universities to provide prevention programming, clear policies, transparent disciplinary proceedings, and more comprehensive crime statistics. Students gain much from the implementation of the new law and these regulations – an advisor of their choice at disciplinary proceedings and more detail about how their school handles certain crimes, from reporting, to investigation, to disciplinary proceeding. In addition, the programming and awareness activities this law will spur have the potential to stem the tide of sexual assault, domestic violence, dating violence, and stalking on campus.
There will still be a public comment period on the rule and AAUW will be weighing in. We hope you will too!
Analysis: Today we kicked off the final two days of the negotiated rulemaking for the VAWA Amendments to the Clery Act, also called Campus SaVE, and are watching closely to see what rules colleges and universities will have to follow to implement the law. Overall, the tone was cordial and consensus seemed (possibly) attainable. But that doesn’t mean the day wasn’t without fireworks over draft language on reporting, compliance, and definitions.
Most negotiators seemed to want to find compromise. No one played the “I can’t agree to consensus with this in there” card… yet.
The group has found agreement around a definition of stalking that I think works for everyone. In the first sessions the negotiators talked about stalking a lot, so the agreement indicates good work by the committee. But we haven’t gotten to the section about counting stalking reports – which might raise some issues.
Although negotiators failed to avoid the same conversation from the February session around dating violence – again highlighting that most negotiators do not agree on what is a dating relationship – there was actually loose agreement around a definition of the term this time.
There is a clear divide on some topics between a compliance-focused approach and a transparency-focused approach (doesn’t have to be mutually exclusive). Case in point: schools will be disclosing information about the sanctions they levy and the protective measures they use following disciplinary proceedings around dating violence, domestic violence, sexual assault, and stalking. Under the draft language, schools should list all sanctions and protective measures they use. Negotiators representing schools worried whether schools would be firmly held to that list and even, somewhat unbelievably, worried whether they would be punished for adding a sanction or protection not on the original list. The moment of levity on this came from the Department of Education, which pointed out that going above and beyond is not a problem. The Department said the goals here are to help students know what options they have and to find the schools who are bad actors. The compliance focus really has the group struggling to see the forest for the trees.
Still waiting on:
Tomorrow negotiators will finish conversation around the term “advisor of their choice” and that the accuser and accused can bring one to proceedings. In addition, they’ll need to finish disciplinary proceedings, get to counting crimes, and approve all of the language changes proposed today. Ultimately, negotiators will be asked if they have achieved consensus on the draft language. You can learn more about what that means and where we go next, here: http://www2.ed.gov/policy/highered/reg/hearulemaking/hea08/neg-reg-faq.html. As always, follow along with our live blog tomorrow.
Analysis: Today’s meeting of the negotiated rulemaking committee on the VAWA amendments to the Clery Act was a bit rocky – the negotiators covered some of the more detailed parts of the draft rule (prevention programs, training, disciplinary proceedings) and opinions in the room varied.
The main takeaways:
Some negotiators worried that the language on prevention programs was too detailed and couldn’t be applied to all types of schools. After ironing out confusion about how the requirement would apply to all students and employees (it would need to be offered but attendance wouldn’t be mandatory) the group still left up in the air exactly where they wanted to see the language go. The Department of Education, for its part, indicated that their goal is to allow flexibility in delivery of the programs but to ensure the definitions and requirements everyone works off are consistent.
The disciplinary proceedings conversation seemed to create a divide between institution representatives and students and survivors, but also revealed that many around the table work at schools who are good actors on this topic, which isn’t always the case. The main points discussed: disclosing the sanctions being applied to students by schools following disciplinary proceedings, the role of an advisor in proceedings, and the interaction between sharing results of proceedings and privacy laws.
The negotiators also discussed how the rule should indicate that Title IX will interact with various on-campus activities such as: training, investigations, disciplinary proceedings, and accommodations, to name a few. The Department has been clear that nothing in this new law and the regulation will change Title IX, and they suggested language to reinforce that point. Some members of the group were not completely on board with that draft language.
I’ll leave you with the positive note the Department tried to end the day on: days 3 and 4 tend to be the hardest in a negotiated rulemaking since so many details are being worked out, but there’s reason to be optimistic the group can reach consensus. The negotiators were encouraged to talk over the next month and think of compromise ways to move forward. Likewise, those following along can reach out to negotiators if there are suggestions for ways to solve some of the problems vocalized.
We’ll be back on March 31 and April 1 for the final days of negotiation!
Analysis: Day 3 the of the negotiated rulemaking around the Violence Against Women Act amendments to the Clery Act (also known as Campus SaVE) proceeded a bit differently from the first two days – negotiators had a draft rule to work from, and consensus-building was clearly on their minds. If you’re just joining us and wondering what negotiated rulemaking is, you can learn more here: http://www2.ed.gov/policy/highered/reg/hearulemaking/hea08/neg-reg-faq.html.
A few things came up:
Getting the definition of stalking correct is tough. How it interacts with Clery Geography came up several times and finding a way to ensure stalking is captured accurately in statistics is still in flux. Generally no sides on this, though — everyone around the table wants to get it right.
There was some hesitation about setting a definition of consent in this regulation, but that riff mostly stemmed from university counsel concerns. The Department of Education explained a desire to ensure statistics are consistent across schools.
The statistic reporting tool (a chart) is complicated and there’s still confusion (and resistance) around expanding it. The new law asks that we learn about more crimes on campus, specifically domestic violence, dating violence, and stalking– but this is being called “double counting” by some negotiators.
Finally, confusion lingers around reporting for Clery statistics purposes and confidentiality. The Department of Education made clear, however, that there’s a lot of room to improve the draft or provide additional info in a regulation preamble.
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