We live in the age of the 24/7 news cycle and hyper-media coverage, where one wrong move on an organization’s part can affect how it is perceived. For example, how reports of misconduct are investigated and handled by a college or university can impact a school’s liability and reputation for years to come.
Recent changes in the law, as well as enforcement efforts, have further highlighted the pressures facing the nation’s colleges and universities. In April 2013, President Obama signed into law the reauthorization of the Violence Against Women Act (VAWA), which clarified and expanded schools’ responsibilities for reporting and responding to allegations of sexual misconduct under the Clery Act (the Jeanne Clery Disclosure of Campus Security Policy and Campus Crime Statistics Act).
On Oct. 20, 2014, the Department of Education (DOE) published the final regulations for the VAWA amendments to the Clery Act. Notably, VAWA amended the Clery Act to require institutions to compile statistics for incidents of domestic violence, dating violence, sexual assault and stalking. It also required that universities include certain policies, procedures and programs pertaining to these incidents in their annual security reports (ASRs).
The DOE’s Office of Federal Student Aid is responsible for reviewing and evaluating an institution’s compliance with the Clery Act. A review may be initiated by a complaint, a media report or independent audit, or through a review selection process. Failure to fully comply with the Clery Act and other provisions of federal law, including Title IX, can result in investigations and tough resolution agreements, fines and sanctions. In fact, on May 1, 2014, the DOE named 55 colleges and universities under investigation for allegedly failing to adequately investigate sexual assault incidents on campus in violation of Title IX.
So what is a college or university president, general counsel and provost to do?
Kroll’s team specializing in higher education issues, which includes many former prosecutors and law enforcement officials with substantial experience in training and investigating sexual assaults and workplace violence, recommends that institutions of higher education consider the following best practices:
- Ensure that programs, policies and procedures adequately comply with the Clery Act reporting requirements. As a reminder:
- ASRs must document three calendar years of campus crime statistics as well as security policies and procedures; in particular, the basic rights guaranteed to victims of alleged sexual assault.
- A public crime log must be maintained that documents the “nature, date, time, and general location of each crime” and its disposition. The log must be timely and accessible to the public.
- Recent amendments define new crime categories to include domestic violence, dating violence and stalking, and further expand the definitions of sexual assault.
- Timely warnings must be issued about Clery Act crimes that pose a serious or ongoing threat to students and employees.
- There must exist an emergency response, notification and testing policy that informs the campus community about a “significant emergency or dangerous situation involving an immediate threat to the health or safety of students or employees occurring on campus.”
- Sufficiently train adequate number of staff to effectively investigate alleged Clery Act crimes, including sexual assaults, domestic violence, dating violence and stalking. An outside firm with specialized knowledge of the problems and conflicts inherent in college environments can provide invaluable practical guidance in setting up and conducting training sessions.
- For certain allegations against high-level university officials or other high-profile investigations, one should engage an independent investigations firm to avoid the appearance of a conflict of interest.
Although there is no one “right way” to conduct a proper investigation, there are indeed many mistakes to avoid. Understanding the basic principles and tools to allow staff to effectively implement the Clery Act and other obligations under VAWA, Title IX and other provisions of federal law can go a long way to mitigating the risks confronting every college and university in the country.