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TICUA / WALLER LEGAL NOTES
Ensuring Interim Compliance as the Campus SaVE Act Takes Effect
Jeb Gerth, Partner, Labor & Employment
The Sexual Violence Elimination Act (the “Campus SaVE Act”) will take effect March 2014. When it does, it will expand the training and reporting requirements for institutions under the Clery Act: (1) “reportable incidents” will now include hate crimes related to national origin and gender identity, as well as domestic violence, dating violence and stalking offenses; (2) students, coordinators and other officials must be trained on these new categories; and (3) school policies and procedures governing employee and student conduct, victim services and prevention programs must be expanded. Guidance on compliance from the Department of Education (“DOE”) will be delayed because it has not yet issued any regulations. This is problematic because the regulations must first go through a negotiation process that will not be completed before November 2014, six months after the Campus SaVE Act goes into effect and after institutions will have filed their first Annual Security Report under the new law.
Even without regulations to follow, the DOE expects institutions to make a “good faith” effort to comply with the new law in the interim. So far, the DOE has provided preliminary guidance addressing the new crime statistics that should be included in October 2014 Annual Security Reports. The DOE has not yet provided any preliminary guidance on many of the substantive, technical issues of Campus SaVE Act compliance, such as:
What is the timeframe for implementing revisions to campus policies and procedures, and will the DOE permit staged implementation?
How and when must students, coordinators, and other officials be trained, and what must be included in that training?
What will be the burden of proof in conduct cases?
With these unanswered questions, and the DOE’s stated expectation of “good faith” compliance starting early next year, what are institutions to do? In this interim period, prudent institutions should consider the following:
Begin documenting the additional hate crime and offense categories so that those statistics, or at least a reasonable sampling of them, can be incorporated into 2014 Annual Safety Reports.
Revise Clery policies to include prohibitions against the new offenses – these policies may need additional revision after regulations are implemented, but including the new statutory offenses now is a good demonstration of good faith compliance.
Train coordinators and other officials on the new categories, and advise faculty and incoming students of the new policies as well.
Until further guidance is provided, apply current Clery guidelines, including procedures and burden of proof, to any incident involving these new offenses.
If you have any additional questions about the Campus SaVE Act or its implementation, please don’t hesitate to contact the author or any member of Waller.
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The opinions expressed in this article are intended for general guidance only. They are not intended as recommendations for specific situations. As always, readers should consult a qualified attorney for specific legal guidance.