Expect Ramped-Up Student Safety Enforcement in 2014

Written by: Therese Kattner
Published On: January 16, 2014

Colleges and universities should expect that they will soon put more time and effort into student safety compliance, says Peter F. Lake, director of Stetson University’s Center for Excellence in Higher Education Law and Policy and chair of its upcoming law and policy conference.  

Magna Publications spoke with Dr. Lake about why he predicts that safety compliance issues will loom large in the upcoming months.

Magna: What regulatory issues will institutions likely need to act upon in 2014?

Lake: It certainly looks like college safety issues will be at the forefront of compliance. There are several dimensions to this.

The negotiated rulemaking process for the Violence Against Women Act is underway—it will be very interesting to see what comes out of that.National Conference on Law and Higher Education

We also expect more Title IX action regarding sex-based harassment, including sexual assault, from the U.S. Department of Education and the U.S. Department of Justice. There will be a lot of hot issues involving campus safety, but we should expect Title IX to be white hot.

On one hand is a very organized set of groups pushing for more enforcement, and on the other hand is a group of people who are concerned that students accused of sexual assault will not get due process or fair treatment. That’s very likely to produce quite a bit of conflict in the next 18 months to 2 years.

We also think that there’s going to be greater enforcement of the Safe and Drug-Free Schools and Communities Act. There has been very little enforcement of the Act’s regulations, collectively referred to as EDGAR [Education Department General Administrative Regulations] Part 86, but we’re starting to see signs that the Department of Education is becoming more interested in enforcing that law and the regulations associated with it.

Magna: What are some of the signs?

Lake: The first signs have come in some of the Department of Education’s resolution letters and agreements that deal with Title IX; there have been express mentions of compliance with the Safe and Drug-Free Schools Act.

Magna: What does compliance entail?

Lake: Schools are asked to produce biennial reports that show compliance by reporting on their alcohol and drug enforcement and prevention efforts. The government is starting to ask for those.

Magna: It hadn’t already been asking for them?

Lake: A lot of institutions hadn’t been turning them in, and a lot of institutions didn’t even know they have the obligation to turn them in. There’s been no true enforcement; if you didn’t produce the report, you probably got away with it.

But that’s changing now. The Department of Education is asking for the reports, and I’ve heard regulators talk at open meetings about links between alcohol use and sexual assault. The spring and possibly the summer of 2014 could be a very, very interesting time.

The thing that we’re all a little concerned about is that the Department of Education may link demonstrating compliance with the Safe and Drug Free Schools Act to qualifying your school and your students for federal assistance.

If the Department of Education does this, which it looks like it might, it’s entirely possible that the federal government might hold up your student aid packages and federal assistance packages pending approval of your compliance efforts with Safe and Drug Free Schools.

If that happens, it’s going to send a shock wave through higher education because many schools are not in compliance, and many will not be prepared to come into compliance quickly enough to be comfortable with what could happen. It’s speculation, but it’s informed speculation.

Magna: What longer-range issues should we watch?

Lake: The Department of Justice has funded a new National Center for Campus Public Safety that is expected to open soon, so there’s now a spear point on college safety efforts, which are going to be more organized. 

Right now we can only speculate about what the center will look like, but we know that it’s a sea change in federal intervention in college safety. The federal government has never done anything like this before, and it appears that for the first time the Justice and Education departments will work collaboratively with the field on a variety of systematic college safety efforts and possibly provide technical assistance and other resources.

Magna: The Department of Justice’s involvement in higher ed compliance seems to be growing.

Lake: It shocked a lot of people when the Department of Justice showed up in the University of Montana Title IX investigation a summer ago. If you were inside the Beltway, it wasn’t as much of a shock because there’s been a national campus safety bill roaming around Congress for the last couple of years. There’s a lot of bipartisan support for such a bill, and we think one is going to be signed into law eventually. I think the Department of Justice does too.

The Department of Justice began ramping up its interest in higher education even before getting involved with the University of Montana investigation. It has certainly made it known that it is going to be a big player in college safety alongside the Department of Education.

 

The Department of Education has tended to be very K-12 focused. A lot of people who work there have very significant backgrounds in K-12 education. But the Department of Justice includes hard-core cops and prosecutors, and they come with a different mentality about how things should be done.

Sidebar:

The 2014 National Conference on Law and Higher Education meets February 13 to 19, including a pre-conference law fundamentals boot camp and a pre-conference workshop on conducting internal investigations.

The conference is interdisciplinary and includes sessions on campus safety law, social media policy, veterans’ rights, and President Obama’s “College Scorecard,” among other issues.

More speaker and topic information is available at www.stetson.edu/law/conferences/highered/home/index.php.