The Consequences of Not Complying

Since the release of the (now rescinded) April 2011 Dear Colleague letter on sexual violence, hardly a week has passed without news of a campus sexual assault or a lawsuit or federal investigation about one. The historic problems at Penn State University, Michigan State University, Baylor University and others have illuminated persistent patterns of institutional neglect of or disregard for federal rules on campus safety. Title IX and the Clery Act are now familiar topics for anyone paying attention to higher education in the United States.

But another important federal law gets much less attention and has not made it into the vernacular of compliance discussions: the Drug-Free Schools and Communities Act Amendments of 1989 (DFSCA). Institutions of higher education were warned via a lesser known 2011 letter to colleges and universities that the U.S. Department of Education would be enhancing their monitoring of DFSCA compliance, but it does not appear institutions have heeded this warning. Now, for the first time since the law went into effect in 1990, institutions are finally facing consequences for compliance violations.

In short, the law requires institutions to curb harmful and illegal substance use by distributing a comprehensive policy, enforcing alcohol and other drug-related standards of conduct, and implementing strong prevention programs. Every other year, institutions must evaluate their policies and programs and publish a report, called the biennial review report. When college and university presidents sign the program participation agreement with the Education Department to accept federal funding, they agree to abide by the DFSCA, affirm they have a compliant drug and alcohol abuse prevention program in place, and risk losing that funding if they do not. Since 2010, the Office of Federal Student Aid has enforced the DFSCA alongside the Clery Act as part of campus security reviews and student financial aid audits.

In recent years, we have monitored DFSCA compliance and how the Education Department is enforcing the law. And, in sum, we have found that many colleges appear to be noncompliant, and more are being investigated and fined. In research for a 2016 white paper, we uncovered 57 instances where the department found violations between 2014 and 2015. And in a 2017 study, we found that all but two of Michigan’s 28 public community colleges suffered significant failures in compliance. Meanwhile, as we describe in a 2018 law review article about the Education Department’s most recent investigations (especially Penn State), the bar for compliance has also been gradually raised.

Based on our review of fine letters, between November 2014 and September 2018, the department has imposed $739,000 in fines for DFSCA violations across 36 institutions, with the highest potential cost of noncompliance increasing during this period from $35,000 per violation to $55,907 per violation. In September 2018 alone, eight colleges were fined for violations, with fines reaching $38,500. All this evidence suggests that institutions should invest more in their DFSCA compliance efforts.

Common Pitfalls to Avoid

This past fall, administrators most likely completed their 2016-18 biennial review reports, so as we enter a new year, it is an opportune time to consider how to improve DFSCA compliance. In addition to the advice offered in the articles cited above, we point out the most common pitfalls in DFSCA compliance.

Unfamiliarity with the law. Substance abuse prevention and response have become so ingrained in the day-to-day rhythm of higher education that many institutions have simply overlooked the basic requirements of the DFSCA. This is not surprising, as the law went largely unenforced for its first two decades. But the underlying precept of the DFSCA is that institutional prevention and response efforts must be guided by comprehensive policies that are widely publicized and thoughtfully implemented. Complying with the requirements of the law represents the minimum standards to which institutions must adhere to remain eligible to participate in federal financial assistance programs.

Making compliance only a once-a-year effort. Each institution must distribute written information about its drug and alcohol abuse prevention program annually to all students and employees. But a single email once each year will not reach every student and employee that must receive it. As new employees are hired, and as new students enroll throughout the year, they, too, must receive the prevention program materials.

In addition, every other year, institutions must conduct a review of the effectiveness of their prevention program and ensure consistency of sanction enforcement. Institutions tend to handle those tasks as one-off efforts, but implementing a quality prevention program requires continuous engagement. For example, well-done biennial reviews can take most of a year to complete, and implementing the recommendations from a biennial review can consume the following year. The most successful institutions treat DFSCA compliance as a continuous process.

Failure to institutionalize compliance. While the Education Department encourages institutions to “appoint and empower” a DFSCA compliance officer to oversee compliance efforts, institutions have rarely done so. Compliance tends to fall to whichever individual or office is aware of the requirements, if such awareness even exists at the institution. We often see this play out in biennial reviews, if an institution is conducting one at all.

Typically, very few people are involved in the review or its resultant report. To be most effective, however, the biennial review should include a cross-section of individuals from the various offices that have a stake in eradicating substance abuse from campus communities. All of them can bring valuable data and insights to the process.

Overlooking employees. Institutions are appropriately focused on preventing student alcohol and other drug abuse, but the law applies to employees, too, and it requires more from institutions than its close cousin, the Drug-Free Workplace Act of 1988. The development, distribution and evaluation of substance abuse policies and programs -- including the requirement to ensure consistency of sanction enforcement in the biennial review process -- should address both students and employees. Institutions should include human resources professionals in their compliance efforts.

During the fall semester, a national fraternity organization moved to ban hard liquor at chapter parties, and alcohol or drugs were blamed for at least two student deaths. These stories demonstrate that colleges still struggle with the problem of student substance use. Thus, the three-decades-old DFSCA remains relevant and in force today, and the Education Department is demonstrably pressing colleges to do better. As institutional administrators continue to invest in compliance efforts on sexual misconduct and campus safety, we urge them not to forget about the Drug-Free Schools and Communities Act.