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Last Friday, the Department of Education (ED) published (PDF) in the Federal Register designed to implement changes that the made to the (Clery Act). These regulations will take effect on July 1, 2015.

A draft of the regulations was submitted to the public for notice and comment—a statutorily-required process that ED inexcusably skipped before issuing its controversial April 4, 2011, “Dear Colleague” letter. The regulations published last Friday are not substantially different from the draft that was offered for public notice and comment. As FIRE noted when ED offered this draft back in June, these provisions are better for students’ rights than drafts circulated at the beginning of the process.

In particular, FIRE wrote that we were “pleased that the proposed regulations do not attempt to mandate that campus judiciaries decide sexual assault cases using our judiciary’s lowest evidentiary threshold, the preponderance of the evidence standard.” Thankfully, the final regulations did not reinsert a preponderance of the evidence mandate. We are also pleased that the regulations did not impose a definition of consent.

FIRE submitted formal commentary on the proposed regulations during the notice and comment period. In our comment, we asserted that the proposed regulations would benefit from two changes. First, we explained that the definition of stalking in the proposed regulation differed significantly from the definition in Section 107 of the Violence Against Women Act. We’ve bolded the pertinent parts. The VAWA definition reads:

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Section 2261A of title 18, United States Code, is amended to read as follows:

Sec. 2261A. Stalking

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(1) travels in interstate or foreign commerce or is present within the special maritime and territorial jurisdiction of the United States, or enters or leaves Indian country, with the intent to kill, injure, harass, intimidate, or place under surveillance with intent to kill, injure, harass, or intimidate another person, and in the course of, or as a result of, such travel or presence engages in conduct that—

(A) places that person in reasonable fear of the death of, or serious bodily injury to—

(i) that person;

(ii) an immediate family member (as defined in section 115) of that person; or

(iii) a spouse or intimate partner of that person; or

(B) causes, attempts to cause, or would be reasonably expected to cause substantial emotional distress to a person described in clause (i), (ii), or (iii) of subparagraph (A); or

(2) with the intent to kill, injure, harass, intimidate, or place under surveillance with intent to kill, injure, harass, or intimidate another person, uses the mail, any interactive computer service or electronic communication service or electronic communication system of interstate commerce, or any other facility of interstate or foreign commerce to engage in a course of conduct that—

(A) places that person in reasonable fear of the death of or serious bodily injury to a person described in clause (i), (ii), or (iii) of paragraph (1)(A); or

(B) causes, attempts to cause, or would be reasonably expected to cause substantial emotional distress to a person described in clause (i), (ii), or (iii) of paragraph (1)(A), shall be punished as provided in section 2261(b) of this title.

In contrast, the new regulations define stalking as:

(1) Engaging in a course of conduct directed at a specific person that would cause a reasonable person to-–

(i) Fear for the person’s safety or the safety of others; or

(ii) Suffer substantial emotional distress.

(2) For the purpose of this definition--

(i) Course of conduct means two or more acts, including, but not limited to, acts in which the stalker directly, indirectly, or through third parties, by any action, method, device, or means, follows, monitors, observes, surveils, threatens, or communicates to or about a person, or interferes with a person’s property.

(ii) Substantial emotional distress means significant mental suffering or anguish that may, but does not necessarily, require medical or other professional treatment or counseling.

(iii) Reasonable person means a reasonable person under similar circumstances and with similar identities to the victim.

The key difference between the two stalking definitions is that the statutory definition found in VAWA requires an “intent to kill, injure, harass, or intimidate another person,” whereas the definition in the regulations require only that the conduct have the effect of causing a person to “[s]uffer substantial emotional distress.” This distinction makes a significant difference. As we told ED in our written comment:

Classifying speech that has this emotional impact as “stalking” without requiring intent on the part of the speaker to cause that harm runs afoul of the First Amendment. Federal courts that have found § 2261A constitutional have relied on an intent requirement not present in the proposed regulation.

Despite our effort to convince ED to cure this defect, the new regulations failed to make this correction. The consequence of this failure is not academic. The broader definition now enshrined in the regulations will result in inflated stalking statistics, as colleges and universities will now record allegations of behaviors that are categorically not stalking as if they were. Beyond the impact on compilation of statistical data, will anyone be surprised when, 10 years from now, advocates argue that this broader definition of stalking should be the standard used by criminal courts? By then, it’s almost certain that advocates will argue that the broad definition is acceptable because it will have been used by the federal government for a decade.

The other area of concern we raised to ED involved the proposed regulations regarding students’ access to counsel in disciplinary hearings. As we explained in our comment to ED:

[T]he proposed regulations state that campus policies must:

(iii) Provide the accuser and the accused with the same opportunities to have others present during any institutional disciplinary proceeding, including the opportunity to be accompanied to any related meeting or proceeding by the advisor of their choice;

(iv) Not limit the choice of advisor or presence for either the accuser or the accused in any meeting or institutional disciplinary proceeding; however, the institution may establish restrictions regarding the extent to which the advisor may participate in the proceedings, as long as the restrictions apply equally to both parties[.]

The text of the legislation requires university policies to provide that:

The accuser and the accused are entitled to the same opportunities to have others present during an institutional disciplinary proceeding, including the opportunity to be accompanied to any related meeting or proceeding by an advisor of their choice[.]

The problem with the language in the proposed regulations (now adopted by ED without any changes) is that it implies that the statute empowers institutions to limit the roles of advisors to that of passive observers, barred from participating on students’ behalf. This implication is profoundly inaccurate. As we noted in our comment to ED, the statute is “silent as to whether institutions may restrict or limit these advisors in the proceedings.”

Once again, this is a distinction with a difference. This regulation must not be interpreted to undermine the rights of students in states like North Carolina, where state law provides them with the right to active assistance of counsel.

Despite our disappointment that ED failed to make either of the changes we requested, FIREis still pleased that these regulations rejected some of the most extreme proposals offered by some rulemakers and advocates. We are also glad to see that they accurately reflect that colleges and universities cannot restrict students’ choice of advisors. These are both welcome developments.

Finally, the regulations contain interesting notes on student and faculty training. In the preamble to these new regulations, ED stated that the statute and the regulations require institutions to offer training on “issues related to dating violence, domestic violence, sexual assault, and stalking,” as well as “annual training on how to conduct an investigation and hearing process that protects the safety of victims and promotes accountability.” However, with regard to who must attend these trainings or what the trainings must include, ED made clear that “the statute does not mandate student or employee participation in prevention training, nor does the statute authorize the Department to specify what an institution’s training must contain.” (Emphasis added.) Specifically, ED writes:

[W]e note that neither the statute nor the regulations require that every incoming student, new employee, current student, or faculty member, take or attend the training. The regulations require only that institutions offer training to all of these specified parties...

But while training isn’t mandatory under the statute or the regulations, ED nevertheless encourages institutions to mandate it anyway:

Although the statute and regulations do not require that all students and employees take or attend training, we encourage institutions to mandate such training to increase its effectiveness.

We’ll see how institutions respond. FIREis concerned about such training because of the history of troubling mistakes we’ve seen colleges and universities make with regard to their training programs’ content. For example, Stanford University has trained students on sexual assault panels to believe that "act[ing] persuasive and logical" is a sign of guilt. And just this month, we reported on harassment training at Marquette University that taught faculty members that certain instances of speech that would be clearly protected by the First Amendment at a public university constituted harassment, like an anti-war sign or a discussion of opposition to same-sex marriage. Given these problems, FIREwill be watching closely to make sure any training that colleges and universities institute with regard to sexual harassment and sexual assault respects both free speech and due process rights.