Overview of Title IX and the Clery ActDecember 19, 2014

Overview of Title IX and the Clery Act

Introduction

• Welcome• Purpose of the presentation• Overview of the law

– Title IX – The Clery Act– Reporting Options & Obligations

Title IX

Title IX

Title IX provides that “[n]o person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance.”

20 U.S.C. § 1681(a)

Enforcement of Title IX

• Title IX is enforced through two different mechanisms– Civil litigation– Department of Education Office for Civil

Rights (“OCR”) investigation

Civil Liability

• Since the enactment of Title IX in 1972, the U.S. Supreme Court has recognized a private right of action

– Davis v. Monroe County Bd. of Educ., 526 U.S. 629 (1999)

United States Supreme Court Standards for Civil Liability

Davis v. Monroe County Bd. of Educ., 526 U.S. 629 (1999)

United States Supreme Court Standards for Civil Liability

“Actual Knowledge” and “Deliberate Indifference”

• Simpson v. Univ. of Colo. Boulder, 500 F.3d 1170 (10th Cir. 2007) (reversing summary judgment in favor of the university)

• Actual knowledge:– Official school policy of showing recruits a “good time”– Other sexual assault and harassment complaints

implicating athletes and the recruiting program • Deliberate indifference:

– Failure to supervise and take steps to educate students regarding appropriate conduct in recruiting program

OCR Enforcement

• OCR is an agency within the DOE that focuses on ensuring equal access to education– Injunctive relief; sanctions for non-compliance tied

to federal funding• Initially, Title IX focused on equal access to

sports resources in education– 2001 Guidance– Watershed moment: April 4, 2011 Dear

Colleague Letter

2011 Dear Colleague Letter Sets DOE Compliance Standard

DOE Compliance Standard

April 4, 2011 Dear Colleague Letter

• Central Requirements– Standard applied to response:

• Known or should have known – injunctive relief standard• Stop the harassment, prevent it from recurring, and remedy

the effects

– Standard applied to complaint process: Prompt and equitable

– Standard of proof applied during complaint process: Preponderance of the evidence

April 4, 2011 Dear Colleague Letter

• Additional Specific Requirements:– Notice to students of procedures for filing and

pursuing a complaint;– Requirement of impartial investigation of

complaints, including the opportunity for both parties to present witnesses and other evidence;

April 4, 2011 Dear Colleague Letter

• Additional Requirements continued:– Designation of expected time frames for the

complaint process;– Notice to parties of the outcome of the

complaint; – Assurance that the school will take steps to

prevent recurrence of any harassment and correct its discriminatory effects on the complainant and others.

Post Dear Colleague Letter

• National movement– Begins in October 2012 at Amherst College– Additional Title IX complaints filed– Currently there are over 85 pending OCR

investigations

Post Dear Colleague Letter

• January 2014 Executive Action – Non-binding guidance– President’s Task Force

• Campus Climate Survey• Prevention programs

– Focus on Bystander Intervention• Effective responses to reports – Trauma informed

– Protocol– Training– Online assistance– Sample MOUs

• notalone.gov

Post Dear Colleague Letter

• April 2014 Guidance– “Know your Rights”—Fact Sheet– FAQs—Comprehensive Guidance

• Scope and Procedural Requirements• Education and Prevention• Interim Measures and Remedies• Confidentiality and Reporting Obligations

The Clery Act

The Clery Act – Overview

• Jeanne Clery Disclosure of Campus Security Policy and Campus Crime Statistics Act (“Clery Act”)

• Any crime reported to a Campus Security Authority (“CSA”) or local police department must be recorded and reported as required by Clery

Enforcement

• Enforcement

– No private right of action

– Administrative enforcement through the office of Federal Student Aid (“FSA”) within the DOE

• Secretary of Education may impose civil penalties on institutions that violate the Clery Act

• Maximum fine is $35,000 per violation • Each inaccuracy or failure to report or warn may

constitute a separate violation

Clery Crimes

– Criminal homicide– Sex offenses– Robbery– Aggravated assault– Burglary – Motor vehicle theft– Arson

– Hate crimes – Liquor law violations – Drug-related violations– Weapons possession– Domestic violence*– Dating violence*– Stalking*

• Reportable crimes:

Requirements Related to Sexual Misconduct

• Collect statistics on Clery crimes occurring in specified geography– Annual Security Report (“ASR”) – Maintain Daily Crime Log (for colleges that

have campus security department)• Issue campus alerts/timely warnings

Clery Jurisdiction

• ASR– Report Clery crimes occurring in the following

locations:• On campus• Residence halls• Noncampus property (owned or controlled by university)• Public property (within and adjacent to campus)

• Crime Log– Report all crimes occurring in patrol jurisdiction

of the campus police or security department

Timely Warnings

• Issue timely warnings to campus community of Clery crimes reported to CSAs or local police agencies that constitute a serious or continuing threat to students and employees

Timely Warnings

– Factors in determining whether crime presents a threat:

• The nature of the crime• The continuing danger to the campus community • The possible risk of compromising law

enforcement efforts– “Timely” means “as soon as the pertinent

information is available,” even before officials have all of the facts surrounding an incident

VAWA Amendments

• March 2014 VAWA Reauthorization (Campus SaVE Act)– VAWA added additional categories to Clery

reporting• Domestic and dating violence• Stalking

– VAWA expanded the definition of hate crimes to include:

• National origin• Gender identity

VAWA Amendments

• VAWA Amendments, continued– Education requirements

• Training students• Ongoing prevention and awareness campaign

– Process requirements• Notification of legal rights• Notification of applicable standard• Notification of possible sanctions• Training individuals who participate in the

grievance process

Intersection of Title IX and Clery

• Title IX and Clery intersect because “sex offenses” are crimes subject to the Clery reporting requirements

• VAWA, as described, creates significant overlap

• Note: Not all reports that implicate Title IX are Clery-reportable crimes, and not all Clery-reportable crimes implicate Title IX

Intersection of Title IX and Clery

• Title IX and Clery also intersect because Clery requires the issuance of “timely warnings” to campus community of Clery crimes that constitute a serious or continuing threat to students and employees

– VAWA amendments prohibit institutions from including the victim’s name in a timely warning

Reporting Options & Obligations

Reporting Options & Obligations

• Survivors have various reporting options, including:– Confidential Employees

– Non-Confidential Employees • Responsible Employees• Campus Security Authorities

– External Law Enforcement Authorities

Reporting Obligations - Confidential Employees

• Confidential employees are:– Licensed clinical or mental-health professionals

(including licensed rape crisis counselors)– Religious leaders

• Not obligated to report for purposes of Title IX or Clery

• Precluded from disclosing identifying information at all absent very rare circumstances– e.g., Clear and imminent danger to the victim

absent disclosure

Reporting Obligations - Responsible Employees

• A responsible employee:– Has the authority to take action to redress sexual

violence;– Has been given the duty of reporting incidents of

sexual violence or any other misconduct by students to the Title IX Coordinator; or

– Is a person whom a student could reasonably believe has this authority or duty

• Obligated to report information to the Title IX Coordinator about complaints of sexual assault (and other forms of sex discrimination)

Reporting Obligations - CSAs

• CSAs are:– Campus police/individuals with responsibility

for campus security– Individuals or organizations identified as

someone to whom students and employees should report crimes

– Any official of the institution who has significant responsibility for student and campus activities

Reporting Obligations - CSAs

• Significant overlap with “responsible employees”

• Obligated to notify Clery coordinator of reports

• May also be obligated to notify Title IXcoordinator re: crimes related to sexual misconduct

Reporting Obligations - CSAs

• Note: A report must be reported and documented for Clery purposes once a CSA has knowledge of the report, whether the student wants to proceed with a formal complaint or not– A student need not pursue the Title IX process

for the report to count for Clery purposes– No names are provided as part of Clery

reporting

Reporting to Law Enforcement

• Legal Requirements– Mandatory reporting to external police

agencies for minors only• Title IX Guidance

– Responsible employees are not obligated to report to law enforcement, and should balance reporting against student’s interest in, or request for, confidentiality

• FERPA confidentiality requirements

Encouraging Students to Report

• Balancing confidentiality and meeting obligations under Title IX– “[T]he Title IX coordinator . . . should make every

effort to respect [a student request for confidentiality] and should evaluate the request in the context of the school’s responsibility to provide a safe and nondiscriminatory environment for all students.”

– In some instances may need to “override” student’s interest in confidentiality in order to meet obligations under Title IX

• FERPA confidentiality requirements

Conclusion

• Hard cases, competing goals, high level of sensitivity

• Title IX and the Clery Act contain detailed, highly technical, requirements

• Law and guidance is in a state of flux