S. 2692 — Introduced in Senate

II 113th CONGRESS 2d Session S. 2692 IN THE SENATE OF THE UNITED STATES July 30, 2014 Mrs. McCaskill (for herself, Mr. Heller, Mr. Blumenthal, Mr. Grassley, Mrs. Gillibrand, Ms. Ayotte, Mr. Warner, Mr. Rubio, Mrs. Boxer, and Mr. Graham) introduced the following bill; which was read twice and referred to the Committee on Health, Education, Labor, and Pensions A BILL To amend the Higher Education Act of 1965 and the Jeanne Clery Disclosure of Campus Security Policy and Campus Crime Statistics Act to combat campus sexual violence, and for other purposes. 1. Short title This Act may be cited as the Campus Accountability and Safety Act. 2. Amendments to the Clery Act Section 485(f) of the Higher Education Act of 1965 (20 U.S.C. 1092(f)) (known as the Jeanne Clery Disclosure of Campus Security Policy and Campus Crime Statistics Act) is amended— (1) in paragraph (1)— (A) by inserting and on the website of the institution after through appropriate publications or mailings; (B) in subparagraph (C), by striking clause (ii) and inserting the following: (ii) the memorandum of understanding between the institution and local law enforcement that is required under section 124 (or, if such requirement has been waived, a description of the working relationship of campus security personnel with State and local law enforcement agencies); and ; and (C) by adding at the end the following: (K) (i) With respect to the criminal activity described in subparagraph (F)(i)(II), the eligible institution shall prepare by not later than 1 year after the date of enactment of the Campus Accountability and Safety Act, and annually thereafter, the following additions: (I) The number of cases that were investigated by the institution. (II) The number of cases that were referred for a disciplinary proceeding at the institution. (III) The number of cases that were referred to local or State law enforcement. (IV) The number of alleged perpetrators that were found responsible by the disciplinary proceeding at the institution. (V) The number of alleged perpetrators that were found not responsible by the disciplinary proceeding at the institution. (VI) A description of the final sanctions imposed by the institution for each offense perpetrated. (VII) The number of disciplinary proceedings at the institution that have closed without resolution. (ii) The Secretary shall provide technical assistance to eligible institutions to assist in meeting such additional preparation obligations. ; (2) by striking paragraph (7) and inserting the following: (7) (A) The statistics described in clauses (i) and (ii) of paragraph (1)(F)— (i) shall not identify victims of crimes or persons accused of crimes; and (ii) shall be compiled in accordance with the following definitions: (I) For the offenses of domestic violence, dating violence, and stalking, such statistics shall be compiled in accordance with the definitions used in section 40002(a) of the Violence Against Women Act of 1994 (42 U.S.C. 13925(a)). (II) For offenses not described in subclause (I), such statistics shall be compiled in accordance with— (aa) either the National Incident-Based Reporting System or the Uniform Crime Reporting Program of the Federal Bureau of Investigation, if a definition is available; and (bb) if an offense is not defined in either the National Incident-Based Reporting System or the Uniform Crime Reporting Program of the Federal Bureau of Investigation, a definition provided by the Secretary. (B) The Secretary shall establish and make publicly available a definition for any offense that— (i) is required to be reported in accordance with paragraph (1)(F); (ii) is not an offense described in subparagraph (A)(ii)(I); and (iii) is not defined in either the National Incident-Based Reporting System or the Uniform Crime Reporting Program of the Federal Bureau of Investigation. ; (3) in paragraph (8)(B)(i)— (A) in the matter preceding subclause (I), by inserting , developed in consultation with local, State, and national sexual assault, dating violence, domestic violence, and stalking victim advocacy, victim services, or prevention organizations, and local law enforcement, after Education programs; and (B) in subclause (I)(aa), by inserting , including the fact that these are crimes for the purposes of this subsection and reporting under this subsection and the institution of higher education will, based on the victim’s wishes, cooperate with local law enforcement with respect to any alleged criminal offenses involving students or employees of the institution of higher education after stalking; (4) by redesignating paragraph (18) as paragraph (22); and (5) by inserting after paragraph (17) the following: (18) The individual at an institution of higher education that is designated as a responsible employee, as defined in section 901(e) of the Education Amendments of 1972, shall be considered a campus security authority, as defined in section 668.46(a) of title 34, Code of Federal Regulations. (19) (A) The Secretary shall, in consultation with the Attorney General, develop, design, and administer through an online portal, a standardized, online survey of students regarding their experiences with sexual violence and harassment. The survey shall be administered every year. The survey shall not include any personally identifiable information. The Secretary shall develop such survey tool using best practices from peer-reviewed research measuring sexual violence and harassment. In addition to the standardized questions developed by the Secretary, institutions completing the survey may request additional information from students that would increase the institutions’ understanding of school climate factors unique to their campuses. (B) In carrying out subparagraph (A), the Secretary shall require each institution participating in any program under this title, to ensure that an adequate, random, and representative sample size of students enrolled at the institution complete the survey described in subparagraph (A) not later than 1 year after the date of enactment of the Campus Accountability and Safety Act. (C) Responses to the survey shall be submitted confidentially and shall not be included in crime statistics reported under this subsection. In addition, questions should be designed to gather information on survivor experiences, and shall therefore use trauma-informed language to prevent re-traumatization. (D) The survey described in subparagraph (A) shall include, but is not limited to, the following topics: (i) Those designed to determine the incidence and prevalence of sexual violence, dating violence, domestic violence, and stalking. (ii) Those on whether students know about institutional policies and procedures. (iii) Those on, if victims reported the violence, to whom and what response did they receive and if they were informed of, or referred to, local, State, on-campus, and or national resources. (iv) Those on contextual factors, such as whether force, incapacitation, or coercion was involved. (v) Those on whether the assailant was a student. (vi) Those on whether the victim was referred to local or State law enforcement. (E) The Secretary shall tabulate and publish an annual report on the information gained from the survey under this paragraph on the website of the Department and submit such report to Congress. The report shall include campus-level data for each school and attributed by name of each campus. (20) Not later than 180 days after the date of enactment of the Campus Accountability and Safety Act, the Assistant Secretary for Postsecondary Education of the Department and the Assistant Secretary for Civil Rights of the Department shall jointly develop and make publicly available guidance regarding the intersection between this subsection and title IX of the Education Amendments of 1972, in order to clarify how the provisions of this subsection and such title shall be carried out. The guidance shall include clarifying language on how this subsection and such title IX interact pertaining to sexual violence, and shall clarify and resolve any potential discrepancies or inconsistencies between the two. (21) Notwithstanding any other provision of this Act, upon determination, after reasonable notice and opportunity for a hearing, that an eligible institution has violated or failed to carry out any provision of this subsection, or agreement made to resolve a compliance review under this subsection, or any regulation prescribed under this subsection, the Secretary may impose a civil penalty upon such institution not to exceed $150,000, which shall be adjusted for inflation annually, for each violation or misrepresentation, or per month a survey is not completed at the standard required. The Secretary may use any such civil penalty funds to enforce and administer the provisions of this subsection. . 3. Coordination with local law enforcement (a) In general Part B of title I of the Higher Education Act of 1965 (20 U.S.C. 1011 et seq.) is amended by adding at the end the following: 124. Coordination with local law enforcement Each institution of higher education that receives funds or any other form of financial assistance under any Federal program, including participation in any federally funded or guaranteed student loan program, shall enter into, and update every 2 years, a memorandum of understanding with all applicable local law enforcement agencies to clearly delineate responsibilities and share information, in accordance with applicable Federal confidentiality laws, about certain serious crimes that shall include, but not be limited to, sexual violence, occurring against students of the institution or against other individuals on the campus of the institution. The memorandum of understanding shall include, but is not limited to— (1) delineation and sharing protocols of investigative responsibilities; (2) protocols for investigations, including standards for notification and communication and measures to promote evidence preservation; (3) agreed upon training and requirements for the institution on issues related to sexual violence; and (4) a method of sharing information about specific crimes, when directed by the victim, and a method of sharing crime details anonymously in order to better protect overall campus safety. . (b) Effective date and penalty (1) Effective date The amendment made by subsection (a) shall take effect on the date that is 1 year after the date of enactment of this Act. (2) Penalty The Secretary of Education— (A) may impose a civil penalty of not more than 1 percent of an institution's operating budget, as defined by the Secretary of Education, each year that the institution of higher education fails to carry out the requirements of section 124 of the Higher Education Act of 1965, as added by subsection (a), by the date that is 1 year after the date of enactment of this Act; and (B) may waive the penalty pursuant to paragraph (3). (3) Waiver (A) In general If local law enforcement refuses to enter into a memorandum of understanding under section 124 of the Higher Education Act of 1965, as added by subsection (a), the Secretary of Education may waive the penalty under paragraph (2) if the institution certifies why the institution was unable to obtain an agreement and that the institution acted in good faith, and submits to the Secretary a copy of the institution's final offer that was ultimately rejected. The Secretary of Education will then have the discretion to grant the waiver. (B) Referral to department of justice The Secretary of Education shall refer to the Attorney General a copy of each waiver granted under paragraph (2)(B) and the reason, the Secretary has determined, why local law enforcement refuses to enter into a memorandum of understanding. (C) Administrative review If the Secretary of Education does not grant a waiver under paragraph (2)(B), the institution may submit additional information to receive such waiver. If, after submitting additional information, the Secretary still does not grant a waiver under paragraph (2)(B), the decision of the Secretary shall be subject to review pursuant to section 706(2)(A) of title 5, United States Code. (4) Voluntary resolution Nothing in this subsection shall prevent the Secretary of Education from entering into a voluntary resolution with an institution of higher education that fails to carry out the requirements of section 124 of the Higher Education Act of 1965, as added by subsection (a), by the date that is 1 year after the date of enactment of this Act. (c) Negotiated rulemaking The Secretary of Education shall establish regulations to carry out the this section and the amendment made by this section in accordance with the requirements described under section 492 of the Higher Education Act of 1965 (20 U.S.C. 1098a). 4. University support for survivors of sexual violence (a) In general Part B of title I of the Higher Education Act of 1965 (20 U.S.C. 1011 et seq.) is further amended by adding after section 124 (as added by section 3), the following: 125. University support for survivors of sexual violence Each institution of higher education that receives funds or any other form of financial assistance under any Federal program, including participation in any federally funded or guaranteed student loan program, shall establish a campus security policy that includes the following: (1) The designation of 1 or more confidential advisor roles at the institution to whom victims of crime can report anonymously or directly, that complies with the following: (A) The confidential advisor shall not be a student, an employee designated as a responsible employee under title IX of the Education Amendments of 1972, or the title IX coordinator, but may have other roles at the institution. (B) The Secretary shall designate existing categories of employees that may serve as confidential advisors. Such designation shall not preclude the institution from designating new or existing employees or partnering with local, State, or national victim services organizations to serve as confidential advisors or to serve in other confidential roles. (C) The confidential advisor shall be trained to perform a victim-centered, trauma-informed (forensic) interview, which shall focus on the experience of the victim. The confidential advisor may perform the interview for which the goal is to elicit information about the traumatic event in question so that the interview can be used in either a campus or criminal investigation or disciplinary proceeding. (D) The confidential advisor shall inform the victim of the victim's control over possible next steps regarding the victim's reporting options and the consequences of those options, including, but not limited to, the option to conduct a forensic interview with the option to have the forensic interview be recorded, the option to receive a copy of the recorded forensic interview with the option to notify a responsible employee and initiate a campus disciplinary proceeding, the option to notify local law enforcement and initiate a criminal investigation, the option to grant campus disciplinary officials access to the forensic interview, and the option to grant law enforcement officials access to the forensic interview. The confidential advisor shall assist in conducting a forensic interview, making notifications, and granting access to a forensic interview as directed by the victim. (E) The confidential advisor shall liaise with campus or local law enforcement when directed by the victim, and, as appropriate, may assist the victim in contacting and reporting to campus or local law enforcement. (F) The confidential advisor shall be authorized by the institution to arrange reasonable accommodations through the institution to allow the victim to change living arrangements or class schedules, or obtain accessibility services, and make other changes. (G) The confidential advisor shall also advise the victim of both the victim’s rights and the institution’s responsibilities regarding orders of protection, no contact orders, restraining orders, or similar lawful orders issued by the institution or a criminal, civil, or tribal court. (H) The confidential advisor shall not be obligated to report crimes to the institution or law enforcement, unless otherwise required to do so by State law, and shall provide confidential services to students and employees. Requests for arrangement made by a confidential advisor do not constitute notice to a responsible employee for title IX purposes, even when such advisors work only in the area of sexual assault. (I) The name and contact information for the confidential advisor, as well as a victims’ reporting options, the process of investigation and adjudication both by the institution and by law enforcement, and potential reasonable accommodations, which shall be listed on the website of the institution. (J) The institution may partner with an outside victim advocacy organization to provide the service described in this subparagraph. (K) Each institution that enrolls fewer than 1,000 students may partner with another institution in their region or State to provide the services described in this subparagraph. (L) The institution shall appoint an adequate number of confidential advisors not later than the earlier of— (i) 1 year after the Secretary determines through a negotiated rulemaking process what an adequate number of confidential advisors is for an institution based on its size; or (ii) 3 years after the date of enactment of the Campus Accountability and Safety Act. (2) The institution may provide an online reporting system to collect anonymous disclosures of crimes. The victim may submit an anonymous report but the institution would only be obligated to investigate when a formal report is submitted to a responsible employee. (3) The telephone number and URL for a local, State, or national hotline providing information to sexual violence victims shall be clearly communicated on the website of the institution and updated on a timely basis. (4) The name and location of the nearest medical facility where an individual may have a rape kit administered by a trained sexual violence forensic nurse shall be included on the website of the institution, including information on transportation options and reimbursement for a visit to such facility. (5) The institution shall provide an amnesty clause for any student who reports, in good faith, sexual violence to a responsible employee so that they will not be sanctioned by the institution for a student conduct violation, such as underage drinking, that is revealed in the course of such a report. . (b) Effective date Paragraphs (2) through (5) of section 125 of the Higher Education Act of 1965, as added by subsection (a), shall take effect on the date that is 1 year after the date of enactment of this Act. (c) Penalty (1) In general The Secretary of Education may impose a civil penalty of not more than 1 percent of an institution's operating budget, as defined by the Secretary, each year that the institution fails to carry out the requirements of— (A) section 125(1) of the Higher Education Act of 1965, as added by subsection (a), by not later than the earlier of— (i) 1 year after the Secretary of Education determines through a negotiated rulemaking process what an adequate number of confidential advisors is for the institution based on its size; or (ii) 3 years after the date of enactment of this Act; and (B) paragraphs (2) through (5) of section 125 of the Higher Education Act of 1965, as added by subsection (a), by the date that is 1 year after the date of enactment of this Act. (2) Voluntary resolution Nothing in this subsection shall prevent the Secretary of Education from entering into a voluntary resolution with an institution of higher education that fails to carry out the requirements of— (A) section 125(1) of the Higher Education Act of 1965, as added by subsection (a), by not later than the earlier of— (i) 1 year after the Secretary of Education determines through a negotiated rulemaking process what an adequate number of confidential advisors is for the institution based on its size; or (ii) 3 years after the date of enactment of this Act; and (B) paragraphs (2) through (5) of section 125 of the Higher Education Act of 1965, as added by subsection (a), by the date that is 1 year after the date of enactment of this Act. (d) Negotiated rulemaking The Secretary of Education shall establish regulations to carry out the this section and the amendment made by this section in accordance with the requirements described under section 492 of the Higher Education Act of 1965 (20 U.S.C. 1098a). 5. Program participation agreements Section 487(a) of the Higher Education Act of 1965 (20 U.S.C. 1094(a)) is amended by striking paragraph (12) and inserting the following: (12) The institution certifies that— (A) the institution is in compliance with the requirements of section 124 regarding coordination with local law enforcement; (B) the institution has established support for survivors of sexual violence that meets the requirements of section 125; and (C) the institution has complied with the disclosure requirements of section 485(f). . 6. Enforcement and training; subpoena authority Section 901 of the Education Amendments of 1972 (20 U.S.C. 1681) is amended by adding at the end the following: (d) Website The Secretary of Education shall establish a title IX website that includes the following: (1) The name and contact information for the title IX coordinator, including a brief description of the coordinator’s role and the roles of other officials who may be contacted to discuss or report sexual harassment, for each educational institution. Each educational institution shall provide the name and contact information for the title IX coordinator to the Secretary of Education not later than 30 days after the date of enactment of the Campus Accountability and Safety Act. (2) The Department’s pending investigations, enforcement actions, letters of finding, final resolutions, and voluntary resolution agreements for all complaints and compliance reviews under this title related to sexual harassment. The Secretary shall indicate whether the investigation, action, letter, resolution, or agreement is based on a complaint or compliance review. The Secretary shall make the information under this subsection available regarding a complaint once the Office for Civil Rights receives a written complaint, and conducts an initial evaluation, and has determined that the complaint should be opened for investigation of an allegation that, if substantiated, would constitute a violation of this title. In carrying out this subsection, the Secretary shall ensure that personally identifiable information is not reported and shall comply with section 444 of the General Education Provisions Act (20 U.S.C. 1232g), commonly known as the Family Educational Rights and Privacy Act of 1974. (e) Training of responsible employees and other employees (1) Responsible employee In this subsection, the term responsible employee means an employee of an institution of higher education who has the authority to redress sexual harassment or who has the duty to report incidents of sexual harassment or other misconduct by students or employees to the title IX coordinator or other appropriate school designee. (2) Training of responsible employees Each institution of higher education shall employ a responsible employee who shall complete minimum training requirements (as determined by the Secretary of Education in coordination with the Attorney General and to include training by local, State, or national victim services organizations) and shall be responsible for— (A) reporting cases of sexual harassment to the title IX coordinator of the institution; and (B) providing a student or employee who reports that the student or employee has been a victim of sexual harassment, including, but not limited to, sexual violence, whether the offense occurred on or off campus, with a written explanation of the student or employee’s rights and options, as described in clauses (ii) through (vii) of section 485(f)(8)(B) of the Higher Education Act of 1965. (3) Other/additional training Each individual who is involved in implementing an institution of higher education’s grievance procedures, including each individual who is responsible for resolving complaints of reported crimes, shall have training or experience in handling sexual violence complaints, and the operations of the institution’s grievance procedures, not later than 1 year after the date of enactment of the Campus Accountability and Safety Act. The training shall include, but is not limited to— (A) information on working with and interviewing persons subjected to sexual violence; (B) information on particular types of conduct that would constitute sexual violence, including same-sex sexual violence; (C) information on consent and the role drugs or alcohol can play in the ability to consent; (D) the effects of trauma, including neurobiological change; and (E) cultural awareness training regarding how sexual violence may impact students differently depending on their cultural background. (4) Uniform campus-wide process for disciplinary proceeding relating to claim of sexual violence Each institution of higher education that receives Federal funding— (A) shall establish and carry out a uniform process (for each campus of the institution) for disciplinary proceedings relating to any claims of sexual violence; and (B) shall not carry out a different disciplinary process on the same campus for a matter of sexual violence, or alter the uniform process described in subparagraph (A), based on the status or characteristics of a student who will be involved in that disciplinary proceeding, including characteristics such as a student’s membership on an athletic team, academic major, or any other characteristic or status of a student. (f) Department of education and department of justice civil penalties for institutions of higher education (1) In general Upon determination, after reasonable notice and opportunity for a hearing, that an educational institution that is an institution of higher education has violated or failed to carry out any provision of this section in a factual circumstance related to sexual violence or any regulation prescribed under this section related to sexual violence, the Secretary of Education or Attorney General, may impose a civil penalty upon such institution of not more than 1 percent of the institution's 1-year operating budget, as defined by the Secretary of Education, for each violation or failure. A civil penalty shall not interfere with the Secretary’s or Attorney General’s ability to enter into a voluntary resolution agreement with an institution of higher education. (2) Adjustment to penalties Any civil penalty under paragraph (1) may be modified by the Secretary of Education or Attorney General. In determining the amount of such penalty, or the amount agreed upon in compromise, the appropriateness of the penalty to the size of the operating budget of the educational institution subject to the determination, and the gravity of the violation or failure, and whether the violation or failure was done intentionally, negligently, or otherwise, shall be considered. (3) Distribution Any civil monetary penalty or monetary settlement collected under this subsection shall be transferred to the Office for Civil Rights of the Department of Education or the Department of Justice to be used for purposes of enforcing the provisions of this title related to sexual harassment. (4) Clarification Nothing in the Campus Accountability and Safety Act, or any amendment made by such Act, shall alter, amend, or interfere with the rights and remedies provided for and available under this title. (g) Statute of limitations An individual may file a complaint for a violation of this title, with regards to sexual violence, with the Office for Civil Rights of the Department of Education not later than 180 days after the date of graduation or disaffiliation with the institution. (h) Subpoena and civil investigative demand authority (1) Authority to compel In order to obtain information and documents that are relevant to determining compliance with this title, including any regulations promulgated to carry out this title, the Assistant Secretary of the Office for Civil Rights of the Department of Education and the Assistant Attorney General of the Civil Rights Division of the Department of Justice are authorized to require by subpoena the attendance and testimony of any person that one can reasonably believe to have first-hand knowledge, including current and former students and employees of institutions of higher education, and the production of documents, including reports, answers, records, accounts, papers, and other data in any medium (including electronically stored information), and any tangible thing. (2) Refusal to obey A subpoena issued under this subsection, in the case of contumacy or refusal to obey, shall be enforceable by order of any appropriate United States district court. (3) Civil investigative demand authority The Assistant Secretary of the Office for Civil Rights of the Department of Education and the Assistant Attorney General of the Civil Rights Division of the Department of Justice shall have civil investigative demand authority, which authorizes the request for documents of the institutions and written answers to interrogatories in order to determine compliance with title IX. (i) Coordinator Each educational institution that receives Federal financial assistance from the Department of Education shall submit, annually, to the Office for Civil Rights of the Department of Education and the Civil Rights Division of the Department of Justice, the name of the title IX coordinator of the institution, including a brief description of the coordinator's role and the roles of other officials of the institution who may be contacted to discuss or report sexual violence, and documentation of training received by the title IX coordinator. The educational institution shall provide updated information to the Office for Civil Rights of the Department of Education and the Civil Rights Division of the Department of Justice not later than 30 days after the date of any change. . 7. Training for campus personnel on victim-centered trauma-informed (forensic) interviews Section 304 of the Violence Against Women and Department of Justice Reauthorization Act of 2005 (42 U.S.C. 14045b) is amended— (1) in subsection (a)(2), by striking $300,000 and inserting $500,000; (2) in subsection (b), by adding at the end the following: (11) To train campus personnel in conducting victim-centered, trauma-informed (forensic) interviews. ; and (3) in subsection (g)— (A) by striking In this section and inserting (1) In general.—In this section; and (B) by adding at the end the following: (2) Victim-centered, trauma-informed (forensic) interview In this section, the term victim-centered, trauma-informed (forensic) interview means an evidence-based interview focused on the experience of the victim, conducted by a trained forensic interviewer, in which the goal of the interview is to elicit information about the traumatic event in question for use in a future investigation. The victim shall be given the option to have the interview recorded and to receive a copy of the recorded interview. The victim shall be informed of the reasons why the victim may or may not choose to have the interview recorded. .