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WASHINGTON -- The drafting of new campus safety rules under the Clery Act is reigniting some of the debate over what standard of evidence colleges should be required to adopt in campus disciplinary proceedings involving sexual assault.

Education Department officials on Monday released their first proposal for new campus safety regulations to conform with changes Congress made last March to the Clery Act. The proposal spells out how institutions must handle new, expanded crime reporting requirements, such as including instances of domestic violence, dating violence and stalking in their published crime statistics.

The department’s proposal would also require campus disciplinary proceedings to comply with guidance by the Education Department’s Office for Civil Rights, which in 2011 told colleges they must use a “preponderance of the evidence” standard for campus disciplinary proceedings involving sexual assault. The administration said that colleges must use that standard -- as opposed to the higher, "clear and convincing" evidence standard that many institutions had been using -- in order to be in compliance with Title IX, the federal law barring sex discrimination by educational institutions.

Some individual rights organization criticized that 2011 guidance, calling it unfair and unjust for accused students to face a lower standard of evidence. Victims’ rights and campus safety advocates, meanwhile, praised the administration’s interpretation of Title IX and have argued that the lower evidentiary standard is needed in order to combat the problem of sexual violence on college campuses.

During debate on the Campus SaVE Act over the past several years, many of those campus safety advocates pushed Congress to codify the Obama administration’s guidance on the evidentiary standard into federal law. But, at the insistence of individual rights organizations, such a provision was stripped from the final version of the Clery Act changes that passed the House and Senate and signed into law by the president. 

The Clery Act is silent on evidentiary procedures but it now requires colleges to provide “prompt, fair and impartial” campus disciplinary proceedings. In defining what constitutes “prompt, fair and impartial,” Monday’s proposal from the department says that the proceedings must “comply with guidance issued by the U.S. Department of Education’s Office for Civil Rights.”

The Foundation for Individual Rights in Education on Monday decried that proposed language as a “bait and switch” and accused department officials of showing a “galling” disregard for the Congressional intent of the Clery Act changes and limits on the rule making process.

Joe Cohn, the foundation’s legislative and policy director, said that by requiring campus disciplinary proceedings to comply with guidance from the Office for Civil Rights, the department would, in effect, codify in regulation the “preponderance” evidence standard that Congress specifically rejected in its recent changes to the Clery Act.

“The negotiated rule making process does not empower negotiators to sneak into law substantive requirements that were debated and rejected by Congress,” Cohn said. “Negotiated rule makers were not elected by the public. They must not replace Congress’s will with their own.”

FIRE said that the department and negotiators on the rule making panel who supported the change were contradicting Congressional intent and exceeding their rule making power.

S. Daniel Carter, a campus safety advocate, meanwhile, said that the proposed rule tracks Congressional intent by deferring the standard of evidence issue to be decided at the sub-regulatory level -- that is, through the guidance issued by the department’s civil rights office.

Carter, who directs the 32 National Campus Safety Initiative at the VTV Family Outreach Foundation and is a member of the negotiating panel, said he disagrees with FIRE’s interpretation of the draft.

Education Department officials, in opening the rule making session last month, said that the negotiating panel was only meant to address Clery Act requirements.

“The requirements of Title IX, including those set forth in the April 4, 2011 Dear Colleague Letter on sexual violence, remain unchanged, and schools must comply with them as before,” the department wrote in a PowerPoint presentation.

Still, even if the department’s rule making is focused on the Clery Act and not Title IX, it would be possible for the administration to establish an evidentiary standard consistent with the one it has said exists in Title IX.

Erin E. Buzuvis, a professor at Western New England University School of Law and an expert in Title IX law, said that although the department’s rule making under the Clery Act would not change Title IX itself, it could possibly elevate the preponderance of the evidence standard into regulation.  

Buzuvis, who had not reviewed the department’s proposal, said that agencies often engage in “incorporation by reference” to adopt the standards of another part of law elsewhere.

“If the department were to incorporate by reference [its guidance on Title IX evidentiary standards], which is a practice that agencies engage in all the time, those requirements do become binding and have the force of law.”

Still, she said she believes the Education Department has the clear authority to promulgate rules about the standard of evidence under the Clery Act. The fact that Congress ended up not including such a standard in the final version of the new version of the Clery Act, she said, does not endorse any particular standard but rather leaves it up to the agency to decide.  

“I think the Clery Act left the department no choice but to create a standard of evidence,” she said. “It’s just such an obvious question when it comes to looking at what the hearings are going to look like: what standard of evidence is going to be used?”

The department’s rule making panel on the campus safety issues will continue its meeting Tuesday and another negotiating session is slated for next month. 

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