Tip of the Week by Joseph Vincent, M.L.S., Senior Associate, TNG Consulting LLC
The Clery Act mandates procedures for sexual violence response by colleges and universities, separate and in addition to the requirements of the 2020 Title IX Regulations.
One hundred days to implementation – that challenge was foremost on the minds of Title IX administrators throughout the U.S. at this time last year, beginning with the finalization of the 2020 Title IX Regulations in May and through to the first day those regulations took effect in August.
The summer of 2020 was animated by a chorus of educated and experienced voices attempting to decipher the regulations, describe their impact on existing systems for resolution, and design adequate processes to meet the regulations’ mandates while maintaining a thorough and reliable system for addressing allegations of sex discrimination, from inequitable access barriers to harassment to violence and assault.
The regulations prohibited a narrow range of behaviors the OCR called “sexual harassment,” a confusingly broad term that was now defined to include not just quid pro quo and hostile environment sexual harassment, but also the crimes addressed by the 2013 Violence Against Women Act amendments to The Clery Act: sexual assault, domestic violence, dating violence, and stalking.
The framework that emerged at most institutions of higher education (IHEs) for addressing sex discrimination was two-pronged:
- One prong was designed to address “sexual harassment” by faithfully followed the regulations’ prescriptions complete with a live hearings and advisor-led live cross-examination.
- The second prong was meant to address “everything else,” and resolution frameworks varied widely across the industry, as some IHEs opted to use existing processes – such as those outlined in student or employee handbooks, faculty codes, or collective bargaining agreements – while others designed a standalone, parallel civil rights process for all other sexual misconduct and discrimination occurring outside the provisions of the regulations.
With all the forced process innovation happening across the higher education landscape in the last year, a gap has emerged that threatens to leave victims of sexual violence without recourse while presenting a significant possibility of agency fines for IHEs. That’s because some IHEs have forgotten about the substantive protections of VAWA, or incorrectly believe they were subsumed by the Title IX regulations or were not reauthorized in the last Congress (these provisions are not subject to VAWA’s reauthorization requirements).
Thus, it’s easy to overlook VAWA – the procedural mandates embedded in the §304 amendments are located in the Clery Act, a statute meant to compel comprehensive crime reporting for the benefit of prospective and current students, employees, and visitors. The Clery Act mandates that IHEs publish a report each year that aggregates reports of various types of crimes on-campus – but §304 specifically mandates certain procedural elements of the internal institutional response to reports of certain sexual crimes. It’s not the most intuitive statutory scheme.
Two particular pitfalls emerged when the implementation of regulations-induced resolution processes went into effect at IHEs.
The first occurs when the parallel process for addressing all other types of sex discrimination not addressed by the regulations does not contain the procedural safeguards, rights, and responsibilities mandated by §304 for addressing sexual assault, domestic violence, dating violence, and stalking. VAWA §304 requires that the IHE response includes a number of protections for parties, including providing a victim’s bill of rights, making supportive and remedial measures available, allowing an advisor-of-choice throughout any resolution process, and providing contemporaneous, written notice of outcome to all parties. These protections exist outside of any applicable Title IX process, and thus must be incorporated in any alternate process used by IHE’s to address sexual assault, domestic violence, dating violence, and stalking outside of the Title IX regulations.
The second pitfall can occur when IHEs apply the jurisdictional limitations outlined by the Title IX regulations to dismiss an allegation. The jurisdictional limitations under the regulations are not shared by VAWA §304 – there’s no requirement for the Complainant to be “participating” in the program or for the conduct to have occurred “in the United States” or on-campus. To be clear, the Clery Act does have four geographic coverage zones, but those zones apply only to statistical reporting of crimes, not to when the procedural and substantive protections of VAWA §304 apply. When IHEs receive allegations of sexual assault, domestic violence, dating violence, or stalking, an institutional response that satisfies the Clery Act/VAWA regulations is required.
IHEs are becoming more aware of §304 requirements as victims use it as a tool to insist an IHE respond effectively despite the current Title IX regulatory limitations. Just last month, Inside Higher Education published one attorney’s successful use of §304 to compel a college in Virginia to investigate an allegation of off-campus sexual assault. This follows the Department of Education’s (ED) widely published letter to Arizona State University (ASU) in April 2021 outlining the procedural shortcomings in the university’s response to a sexual assault allegation. The letter included commentary on unnecessary process limitations and a failure to observe the rights of parties under §304, which is an uncommon Program Review finding from ED, and likely a harbinger of what is to come.
In determining that ASU’s actions “resulted in serious violations of the Clery Act,” ED demanded that ASU “immediately terminate” practices that require a victim to request the outcome of a disciplinary hearing, or that require the victim be physically present and/or sign a non-disclosure agreement to obtain the results of a disciplinary hearing. ED took specific issue with ASU related to:
- Placing conditions of any kind on a victim of an alleged sexual assault or their advisor, including the execution of a non-disclosure agreement, as a pre-condition to full participation in the disciplinary process or as a condition of access to simultaneous written notification of the outcomes of a disciplinary proceeding, including the rationale for the determination and information about any sanctions imposed and the individual’s right to appeal.
- Inappropriately applying limitations under FERPA exceptions for disclosure of the outcome of a disciplinary proceeding, which ED indicated do not preclude or limit the institution’s obligation to provide the required notifications in writing and do not support the application of any preconditions to a party’s access to this information, such as a requirement to enter into a non-disclosure agreement.
ED’s reminders to ASU – which the department points out are “not, in any respect, new” – should be heeded by all IHEs. Many Title IX observers are looking forward to a common-sense revision to the Title IX regulations, and the Biden administration appears to be moving in that direction. However, don’t forget that other sources of legal authority have something to say about the way IHEs address sexual assault, dating violence, domestic violence, and stalking. VAWA §304 has risen to prominence in this complex landscape, and IHEs would be wise to double-check that their response to allegations contemplates the appropriate scope, applies the correct jurisdictional rubric, and extends all due rights, protections, and process under Title IX, VAWA §304, applicable state law, or some combination of the three.