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  • U.S Senate Proposes New Bill Aimed at Curbing Campus Sexual Assault

    Last week, a bipartisan group of eight U.S. Senators unveiled legislation aimed at decreasing the number of sexual assaults occurring on college and university campuses across the nation. The proposed legislation, titled the “Campus Accountability and Safety Act,” seeks to codify much of the recent White House guidance and comes just weeks after a Senate subcommittee, led by Senator Claire McCaskill, released the results of a survey demonstrating that nearly forty percent of colleges and universities have not conducted a single sexual assault investigation in the past five years.[1]

    The main components of the proposed legislation include:

    • Climate Surveys: Colleges and universities will be required to conduct annual climate surveys which will anonymously gauge students’ knowledge of campus policies and experiences with sexual violence. The results of these surveys must be published online and made accessible to prospective students and parents.
    • New Campus Resources: Institutions will be required to designate “confidential advisors” for alleged victims of sexual assault. Institutions will also be prohibited from disciplining students who admit to other campus violations, such as drinking, when reporting a claim of sexual misconduct.
    • Minimum Training Sessions: Colleges and universities will be required to provide specialized training for campus personnel charged with investigating allegations of sexual misconduct.
    • Uniform Investigations and Disciplinary Processes: Institutions will now be required to use one uniform process for campus disciplinary proceedings and athletic departments will be prohibited from handling sexual assault complaints involving athletes, a common practice that was specifically identified in Senator McCaskill’s recent survey.[2]
    • Coordination with Law Enforcement: Institutions will be required to enter into agreements with local law enforcement agencies that outline the potential of simultaneous investigations and law enforcement’s role in investigating reports of criminal activity.

    Most important, the proposed legislation subjects colleges and universities to unprecedented, significant financial penalties. Specifically, institutions that do not comply with the above requirements may face a penalty of up to 1% of their operating budget, which for some schools could mean millions of dollars.(Previously, the only allowable penalty for violating Title IX was the loss of all federal financial funding, a compliance mechanism that has never been utilized by the Department of Education.) “The new fines are aimed at giving the Education Department more leverage in its investigations of how colleges handle sexual assault cases. At a large, wealthy institution like Harvard University, a fine could be as large as $4.2 million,” stated Senator Kirsten Gillibrand, one of the bill’s sponsors. The new legislation would also increase the maximum fine for a Clery Act violation from $35,000 to $150,000 per violation.

    The proposed legislation “represents a rare thing in Washington – a truly collaborative, bi-partisan effort that bodes well for our shared fight to turn the tide against sexual violence on our campuses” said Senator McCaskill. The bill is “taking aim at sexual assaults on college and university campuses by protecting and empowering students, and strengthening accountability and transparency for institutions – including establishing stiff penalties for noncompliance with the legislation’s new standards for training, data and best practices,” said Senator Marco Rubio, one of the bill’s sponsors.

    However, critics of the proposed legislation, such as Terry Hartle, a senior vice president for the American Council on Education, allege that “this legislation starts with the premise that we just regulate them a little more and we will get the outcome we want.” “Not only is the 1 percent standard a number pulled out of the air, but the stiffer fines reflect a view that colleges and universities don’t want to deal with this issue and that is just not true” said Hartle. A representative from the Foundation for Individual Rights in Education contends the bill does “not contain provisions to safeguard the due process rights of accused students.”

    According to a statement released by Rep. Carolyn Maloney’s (D-N.Y.) office, the U.S. House of Representatives plans to introduce identical legislation in the upcoming months. While it is unlikely this bill will take effect prior to the beginning of classes later this month, Senator McCaskill and Senator Gillibrand hope to get the legislation passed by Congress by the end of the year.

    It is undeniable that a new era of Title IX enforcement and attention by the federal government has begun. Colleges and universities have a moral and legal obligation to make their campuses a safe place for all students and it’s getting more difficult to meet this obligation. Institutions must keep a close eye on the course of this legislation, as it has the ability to have practical as well as legal implications for all colleges and universities.

    If your institution has questions or concerns about this topic and you would like further information, please email James G. Ryan at jryan@cullenanddykman.com or call him at (516) 357-3750. This article was written with Hayley Dryer, an associate at the firm.


    [1] A copy of the Report can be found at: http://www.mccaskill.senate.gov/SurveyReportwithAppendix.pdf.

    [2] Almost 20 percent of schools surveyed allow athletic departments to adjudicate rape cases involving athletes.