“Nothing in this subsection may be construed to prohibit an institution of higher education from delaying the initiation of, or suspending, an investigation or institutional disciplinary proceeding involving an allegation of sexual assault in response to a request from a law enforcement agency or a prosecutor to delay the initiation of, or suspend, the investigation or proceeding, and any delay or suspension of such an investigation or proceeding in response to such a request may not serve as the grounds for any sanction or audit finding against the institution or for the suspension or termination of the institution’s participation in any program under this title.”
The roles of police and college investigators have been hotly debated in recent years. Some argue that colleges are ill-equipped to investigate sexual violence and should simply leave the issue to the police. Others say colleges must be involved in matters that affect their ability to provide a safe educational environment.
Should criminal and internal inquiries proceed at the same time?
The Obama administration answered yes to that question in a 2014 question-and-answer guidance document on sexual violence and the anti-discrimination law known as Title IX. It said: “A school should not wait for the conclusion of a criminal investigation or criminal proceeding to begin its own Title IX investigation. Although a school may need to delay temporarily the fact-finding portion of a Title IX investigation while the police are gathering evidence, it is important for a school to understand that during this brief delay in the Title IX investigation, it must take interim measures to protect the complainant in the educational setting.”
Under President Trump, the Education Department withdrew that guidance in September. Education Secretary Betsy DeVos pledged to set up new rules for how colleges should respond to sexual misconduct complaints.
Some advocates for sexual assault prevention say the provision in the House bill could deter victims from reporting crimes to police if they believe that criminal investigations would slow or impede internal misconduct inquiries. “This would be very counterproductive,” said Alyssa Peterson, with the activist group Know Your IX, who is a law student at Yale University. Peterson noted that Obama-era guidance advised schools not to interfere with gathering of criminal evidence. “That’s appropriate,” she said. “The school shouldn’t sabotage the survivor’s opportunity to seek justice.”
But a GOP committee aide, who declined to be named, said lawmakers included the provision after hearing from law enforcement that separate college investigations can be a hindrance. “Colleges are not supposed to be courts, and sexual assault is a crime,” the aide wrote in an email. “If the crime is reported to law enforcement, they need to be able to conduct their investigation without the college or university getting in the way.” The committee is chaired by Rep. Virginia Foxx (R-N.C.)
Another provision of the House bill would provide schools with a new exception to the Clery Act’s requirement that they must provide timely warning of threats to campus communities. That requirement became an issue after the 2007 Virginia Tech shootings, when a gunman killed 32 people on the campus in Blacksburg before killing himself. Critics said the public university failed to provide adequate warning to students and faculty during a pause in the violence while a gunman was on the loose. Virginia Tech disputed the criticism, but it paid a $32,500 fine in 2014 after the Education Department concluded that the school had violated the law.
Under the bill, a school “may delay issuing a report” on a threat “if the issuance would compromise ongoing law enforcement efforts, such as efforts to apprehend a suspect.” The bill adds that the federal government:
” . . . shall defer to the institution’s determination of whether a particular crime poses a serious and continuing threat to the campus community, and the timeliness of such warning, provided that, in making its decision, the institution acted reasonably and based on the considered professional judgment of campus security officials, based on the facts and circumstances known at the time.”
David Bergeron, a former education official in the Obama, George W. Bush and Clinton administrations, said the proposal would weaken the timely warning requirement. “It could result in loss of life,” he said. The key point of the law is “if there’s harm being done to members of your community, tell your community,” he said.
The GOP aide said the provision was drawn from the recommendations of a higher education task force. “If the police are on the scene, they may not want the suspect to know that they are looking for him/her, so they may request the [school to] hold off on doing the notifications,” the aide wrote.