Federal Negotiators Allow Lawyers, Other Advisers To Participate in Campus Sexual Assault Hearings

Negotiators empaneled by the U.S. Department of Education (Department) recently reached consensus on several preliminary campus safety rules that should be published in the coming months under the Campus Sexual Violence Elimination Act (Campus SaVE Act). Among those rules was a requirement that an adviser of a student’s choice, including a lawyer, be permitted to attend disciplinary hearings and other meetings related to investigations of possible sexual assault.

Colleges and universities should expect to see a notice of proposed rulemaking (NPRM) from the Department in the coming weeks. Higher education institutions, as well as members of the public, will have the opportunity to comment on the proposed rules before they are formally adopted.

Enacted in March 2013, the Campus SaVE Act, an amendment to the Clery Act, requires colleges and universities to amend their policies and procedures regarding sexual violence and other crimes. It calls for schools to take specified steps to provide prompt, fair, and impartial resolutions to both the accused perpetrators and victims of such crimes. In addition, the statute contains requirements regarding education and training programs for investigators and hearing officials, as well as for students and employees.

Final regulations are anticipated by November 2014, but the Department has issued preliminary regulations as part of the rulemaking process. It has also held several negotiating sessions during which a panel of stakeholders was given the opportunity to discuss the draft rules and suggest changes. Items on which the panel reaches consensus are likely to be adopted into the regulations.

In the negotiating session that concluded this week, discussion topics included the Department’s proposal to allow both victims and accused individuals to select any person to serve as an adviser during school-run proceedings. Under the draft of the regulations discussed, colleges and universities would be required to allow those advisers—including attorneys—to be present at any meetings related to a particular case. Schools would be allowed to limit the scope of the adviser’s participation in any proceedings, however, as long as any imposed restrictions applied equally to the advisers of both victims and accused.