Summary: Defining what he called “Compliance U,” Peter Lake commented that “higher education has entered an era of rapidly increasing regulatory activity at both the federal and the state levels.”1 In this era of intensified responsibility for federal compliance, administrators struggle to balance the demands of implementing new and longstanding regulations. The Drug-Free Schools and Communities Act of 1989 (“DFSCA”)2 requires that administrators invest considerable energy in implementing substance abuse prevention programs, distributing written policies, and evaluating program outcomes. Ill enforced, the DFSCA slipped off the radar of many institutions in the decades following its enactment. For those institutions that remained vigilant, few resources exist from which to derive best practices in compliance. Complicating matters, existing interpretations of the law have changed over time. The Department of Education’s recent investigation of Pennsylvania State University provides timely insight into important issues of DFSCA compliance. Penn State, and many others, have been found to violate the DFSCA in the past five years resulting in fines of up to $35,000 3. In this article, we conduct a comparative analysis of primary sources related to the DFSCA to offer higher education practitioners the best available advice on how to comply with the DFSCA.

Practitioners involved in DFSCA compliance understand that it is tedious, often thankless work. Before getting into the technicalities of compliance, we wish to point out one observation. While enforcing drug laws was the original intent of the DFSCA, the Department of Education also recognizes that complying with the DFSCA presents an opportunity to invest in substance abuse prevention efforts. While the former may seem outdated and uninspiring, the latter is important, impactful work. We encourage readers to think about complying with the DFSCA as a means to achieve safer, healthier campuses. Although this shift in thinking may not make any difference in terms of the required tasks for compliance, it may bring clarity and meaning to the work of campus administrators involved in alcohol and drug programming and policy enforcement. In other words, complying with the DFSCA can be about more than compliance itself. As we describe in our recommendations, doing it well can mean implementing strong programs and policies that yield reductions in harmful substance abuse and campus violence.

We begin by providing a historical analysis of the Drug-Free Schools and Communities Act, including a description of the political context from which it came, its path to passage and amendment, and its purpose in U.S. higher education. Next, we review available research and reports that document how institutions have complied with the law and how the U.S. Department of Education has enforced compliance. We then analyze primary sources of information on the DFSCA in search of both the consistent and the varying interpretations of the regulations. Based on the primary sources, and recognizing the high stakes for compliance, we offer recommendations on meeting the Department of Education’s standards for complying with the DFSCA.

Full Article: Volume 44:2.1 Understanding the Drug-Free Schools and Communities Act, Then and Now

Summary:  The research reported in this Article represents a pioneering attempt to study public records lawsuits involving a public university system over an extended period. An analysis of all public records lawsuits involving the University of Wisconsin System over a four-decade period suggests that much of the received wisdom about public records disputes involving higher education is incorrect. Most public records litigation is not about administrative searches or issues that implicate traditional notions of academic freedom. Rather, most lawsuits in Wisconsin sought information about alleged misconduct or suspected ethical lapses by university employees. News organizations initiated the majority of the lawsuits, always prevailing. Advocacy groups were also very successful in litigation. In contrast, students or employees who sued to obtain information for purely personal reasons rarely gained access to the information they sought. The results show the usefulness of public records laws as a means of public accountability. In addition, the Article demonstrates the merits of a research strategy that focuses on data from trial-court cases that are not available via Lexis, Westlaw, or other online services.

Full Article:  Volume 44:1.2 Forty Years of Public Records Litigation Involving the University of Wisconsin: An Empirical Study

Summary:  Since the formation of the American Republic, Americans have maintained a fundamental mistrust of government power. In the Title IX realm, the Obama Administration exacerbated those concerns. In its efforts to enforce Title IX and to reduce sexual misconduct on campuses, the Obama Administration issued a “Dear Colleague Letter” in April 2011 and a follow up Question and Answer document in April 2014, both of which set out OCR’s view of the obligations of institutions receiving federal financial assistance under Title IX and its implementing regulations. This 2011 Dear Colleague Letter “explains the requirements of Title IX pertaining to sexual-harassment also cover sexual violence, and lays out the specific Title IX requirements applicable to sexual violence.

Full Article:  Volume 44:1.1 Developing Enhanced Due Process Protections for Title IX Sexual Assualt Cases at Public Institutions