Forthcoming Articles

Summary: Internal compliance programs have proliferated at colleges and universities in response to the federal government’s regulatory expansion within higher education. Institutions increasingly utilize these programs in order to manage their myriad compliance obligations and the attendant increase in risk. Yet, even properly designed programs possess many areas of potential weakness that hinder their effectiveness. Concurrently, calls for regulatory reform have grown louder. Although several viable options have been proposed and should be taken seriously, none adequately leverage the compliance function so many universities have recently adopted.

Institutional policies are an inseparable component of an effective compliance program and their status as such justifies their inclusion as a central feature of higher education regulatory reform. In lieu of issuing mere affirmative or prohibitive compliance obligations, Congress and the Department of Education should strategically incentivize the development of university-level policies that address regulated issues in order to encourage the internal collaborative processes that lead to effective compliance outcomes.

In addition to examining the practical aspects and effects of compliance programs and institutional policies, this Article draws from institutional theory to demonstrate that the higher education sector benefits from the open exchange of policies and best practices among peer institutions. The federal government’s use of regulatory policy incentives or mandates can facilitate this exchange and similar modeling behaviors, which in turn can increase efficiencies at the institutional level. In sum, this Article contends that a legal compliance mandate is more likely to be included within the scope of a university’s compliance program (formal or informal as it may be) and implemented effectively if it takes the form of a policy disclosure obligation originating in statute or regulation.

Full Article: Volume 44:2.2 Facilitating University Compliance Using Regulatory Policy Incentives

Understanding the Drug-Free Schools and Communities Act, Then and Now

12.03.2018 | Comments Off

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