F&M

Franklin & Marshall College

Starting Saturday, Franklin & Marshall College will no longer restrict the choice of advisors available to participants in disciplinary hearings involving allegations of sexual assault or misconduct.

Spokeswoman Cass Cliatt confirmed the policy change Wednesday in an email to LNP.

The change will bring F&M into compliance with a key provision of the Violence Against Women Reauthorization Act, or VAWA.

According to VAWA, during any "institutional disciplinary hearing," both the accuser and accused are entitled "to be accompanied to any related meeting or proceeding by an advisor of their choice."

That "clearly and unambiguously" includes the option of an attorney, the Department of Education says.

The department published its final rules governing VAWA on Oct. 20. That gave colleges the “final clarity” needed to guide policymaking, Cliatt said.

'A critical step forward'

F&M's change of policy is "excellent news," said Laura Dunn, founder of SurvJustice, an advocacy group for campus sexual assault survivors.

S. Daniel Carter, the director of 32 National Campus Safety Initiative of the VTV Family Outreach Foundation, called it "a critical step forward."

Until now, F&M has limited advisors in disciplinary hearings.

The hearings are conducted by the Committee on Sexual Misconduct, a panel drawn from college administrators trained on sexual violence issues.

As recently as this summer, the advisors guiding accusing and accused students through the hearing process were also drawn from the committee, without exception.

In July, the Department of Education issued interim guidance to colleges regarding the VAWA changes.

In August, responding to the guidance, the college amended its policy, Cliatt said.

The revisions allowed students to choose from the committee "or another member of the F&M community," spokesman Kevin Burke told LNP in September.

That still precluded an advisor from outside F&M, such as an attorney.

Now, with the further changes, F&M will allow students to pick "advisors of their choice on and off campus," Cliatt said.

F&M has not held a sexual misconduct hearing since the July federal guidance, she noted.

F&M's handling of sexual assault complaints is a matter of concern to advocates for victims’ rights. The school is one of 85 being investigated by the Department of Education's Office of Civil Rights for possible violations of Title IX, the federal anti-discrimination law.

A section of VAWA amends a different law, the Clery Act. That 1990 law requires schools to collect and publish data on crimes in and near their campuses.

It also regulates how they handle disciplinary hearings on sexual assaults and related infractions.

From laws to rules

Congress passed VAWA in March 2013. The Department of Education began enforcing it a year later, in March this year.

However, as is typical with complex laws, VAWA involved a "negotiated rulemaking."

In that process, stakeholders affected by the law meet with the agency charged with enforcing it. The agency hears their concerns, then issues a final set of detailed rules clarifying how it will apply the law.

The VAWA negotiated rulemaking meetings took place in January, February and March. The Department of Education issued a preliminary version of the resulting rules in June. The final rules published Oct. 20 were essentially unchanged.

The rules — which, again, implement a law in force since March — take effect on July 1, 2015.

That lag has led to a sharp divergence of opinion regarding when colleges must comply.

F&M says it could have waited until July 1 to implement the advisor of choice provision. By implementing changes Saturday, the college is taking action "well in advance of the official federal deadline," Cliatt said.

Carter and Dunn served on the rulemaking committee. Carter said Education Department officials clearly stated "that the ‘advisor of their choice’ requirement was an unconditional statutory requirement."

As such, in his view, it was binding as soon as the department began enforcing the law in March.

Dunn concurred, saying: "Some schools think they can take advantage of the delayed rulemaking process, but that is not the case." 

LNP asked the Department of Education directly if colleges such as F&M must currently permit an advisor of choice.

A spokeswoman referred LNP to a press release announcing the publication of the final rules.

The release refers to "advisor of choice" as a provision of the rules, rather than of VAWA itself, and confirms that the rules don’t take effect until July 1.

The release goes on to say, “[T]he VAWA statutory provisions are in effect now and institutions are expected to make a good faith effort to comply with those requirements.”

A followup email from LNP to the department asking for further clarification was not immediately answered.

An attorney formerly with the Education Department’s Office of Civil rights advised F&M that its initial modifications to its advisor policy met the “good faith” standard, Cliatt said.

An advisor, not an advocate

Lancaster County’s other principal four-year residential colleges, Millersville University and Elizabethtown College, currently allow an advisor of choice.

Millersville has permitted outside advisors for some time. Until this summer, Elizabethtown limited advisors to members of the college community, but the policy has been changed in compliance with VAWA.

An advisor is not an advocate, Carter noted. Students must be allowed to consult with their advisors, but schools may bar the latter from addressing other participants in a proceeding, he said.

Cliatt said F&M held off on fully changing its policies until the U.S. Department of Education finalized its position on enforcing VAWA and the definition of the word "advisor."

During the negotiated rulemaking, stakeholders offered "various and conflicting perspectives" that the department had to weigh.

Until Oct. 20 and the publication of the final rules, it was unclear how the Department of Education would resolve them, she said.

Cliatt further said F&M wanted time to address "the very real concerns" it has about the fairness issues involved in implementing the advisor of choice provision.

"We remain concerned about the potential for inequity when one student can afford to hire an attorney for a campus proceeding and the other cannot," she wrote in an email.

Many colleges have engaged in creative ways to address equity concerns, said Gina Maisto Smith, an attorney with Pepper Hamilton in Philadelphia whose practice focuses "on the institutional response to all aspects of sexual misconduct matters," according to her professional biography.

She, too, participated in the negotiated rulemaking.

Some schools use a disciplinary process model such as the investigative model, adopt procedures to maintain equity when an outside advisor of choice participates and provide students with information for available on- and off-campus legal resources or other process support, she said.

The advisor of choice provision lessens the ability of schools to game the process, Dunn said.

“[W]e already have one side using attorneys,” and victims would end up feeling isolated and pressured, she told LNP this summer.

Reached for further comment Wednesday, Dunn said her organization, SurvJustice, is "actively filing federal complaints" against schools that don’t implement the advisor provision.

Other provisions

The VAWA amendments cover numerous practices besides the rules on hearings.

The biggest change, the Department of Education said, is that schools must now publish statistics on reports of crime that, when investigated, turn out to be unfounded.

Schools also must compile statistics on dating violence, domestic violence and stalking and must implement and document comprehensive awareness and prevention programs targeting those crimes. Gender identity has been added as a category of bias for hate crime reporting.

Smith stressed that VAWA is an effort "to address the issues that many survivors experienced.”

“We can't forget that the underlying intent of the statute was to support survivors and create equity in the process,” she said.

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