Overview of Title IX and
the Clery Act
December 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
• Reportable crimes:
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Criminal homicide
Sex offenses
Robbery
Aggravated assault
Burglary
Motor vehicle theft
Arson
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Hate crimes
Liquor law violations
Drug-related violations
Weapons possession
Domestic violence*
Dating violence*
Stalking*
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:
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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
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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 Cleryreportable 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 IX
coordinator 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