By: Kevin E. Raphael
June 25, 2013
As many institutions are quickly learning, colleges and universities face formidable federal compliance requirements under the Clery Act and Title IX. The Department of Education has made it known: Clery violations likely will be fined at the maximum penalty of $35,000 for each violation. Students and parents are now better informed and highly motivated to hold their schools accountable for failure to properly report and investigate incidents of sexual misconduct and offenses of domestic violence, dating violence and stalking. Further, the plaintiffs bar is capitalizing on case law holding that Title IX creates a private right of action against educational institutions.
Now, colleges and universities dealing with allegations of sexual misconduct, domestic violence, dating violence and stalking face an additional challenge: fulfilling the mandates of the Violence Against Women Reauthorization Act (VAWA), which President Obama signed into law March 7. The VAWA amendments do not take effect until next year, but schools must act now to ensure compliance with these new obligations.
The amendments add new categories of crimes that schools must track and report under Clery. VAWA also codifies, through Clery, portions of the Department of Education's 2011 Dear Colleague letter, which provided guidance on responding to claims of sexual violence and related offenses under Title IX.
Employees of educational institutions need to understand how these amendments impact their responsibilities under Clery and Title IX. Failure to comply with these changes can lead to administrative sanctions, significant fines, costly litigation and potential civil liability.
Codified at 20 U.S.C. §1092(f), the Clery Act applies to all public and private postsecondary institutions that participate in federal student financial-assistance programs, such as Pell Grants, the Federal Work-Study Program and Perkins Loans. Under the Clery Act, schools must track criminal activity occurring on and around their campuses by location and type of crime, using definitions set forth in the act and its implementing regulations. The schools must report their crime data to the Education Department each year by October 1. The reports must be made available to the entire school community. The Clery Act has been amended several times over the past 23 years to impose further obligations on schools regarding, among other things, responses to campus emergencies, tracking of fires in student housing and treatment of allegations of sexual harassment and assault, dating violence, domestic violence and stalking.
Institutions that violate Clery can face civil penalties of up to $35,000 per violation. Several schools have been penalized with six-figure fines under Clery in recent years.
VAWA makes several changes to schools' Clery obligations. Those changes include:
• Hate crimes: The definition of a hate crime now includes crimes where victims are targeted because of their national origin or gender identity.
• New definitions: VAWA adds several new definitions to Clery and amends the definition of "sexual assault," which now refers to "an offense classified as a forcible or nonforcible sex offense under the uniform crime reporting system of the Federal Bureau of Investigation."
• Dating violence is defined as "violence committed by a person who is or has been in a social relationship of a romantic or intimate nature with the victim." The existence of a "romantic" or "intimate" relationship is assessed by considering the length and type of the parties' relationship, as well as the frequency of their interactions.
• Domestic violence is defined as "felony or misdemeanor crimes of violence committed by a current or former spouse of the victim, by a person with whom the victim shares a child in common, by a person who is co-habitating with or has co-habitated with the victim as a spouse, by a person similarly situated to a spouse of the victim under the domestic or family violence laws of the jurisdiction receiving grant monies, or by any other person against an adult or youth victim who is protected from that person's acts under the domestic or family violence laws of the jurisdiction."
• Stalking is defined as "engaging in a course of conduct directed at a specific person that would cause a reasonable person to fear for his or her safety or the safety of others" or to "suffer substantial emotional distress."
• New crimes to track: Schools must now specifically report the number of incidents of domestic violence, dating violence and stalking as part of their annual security reports.
The Department of Education's April 2011 Dear Colleague letter sets forth the department's view of how schools must comply with Title IX, which forbids sex discrimination, including sexual violence, in federally funded education programming. The 19-page letter details schools' obligations to develop policies for addressing complaints of sexual harassment and sexual violence, investigating such complaints and remediating any negative consequences suffered by the alleged victims.
Violations of Title IX can lead to both administrative sanctions — including withdrawal of federal funding — and private lawsuits from complainants if their schools had actual notice of the sexual harassment, including sexual violence, the complainants faced and exhibited "deliberate indifference" to the harassment.
VAWA also codifies aspects of the Dear Colleague letter's policy guidance into Clery. Educational institutions are now required to include in their annual security reports (ASR) detailed information about how they respond to incidents of sexual assault, sexual harassment, domestic violence, dating violence and stalking. Schools must adopt policies regarding the following:
• Procedures for victims: Schools must explain in their ASR the procedures victims should follow in cases of domestic violence, dating violence, stalking, sexual assault and sexual harassment. Those procedures must set forth, among other things: to whom the offense should be reported, the importance of preserving evidence and the rights of victims to obtain orders of protection or other similar orders. Victims must be notified that they have the right to report the incident to the police, with the school's assistance if needed.
• Procedures for discipline: Schools must develop and put in place procedures for institutional disciplinary action in cases of domestic violence, dating violence, stalking, sexual assaults and sexual harassment. These procedures must include prompt, fair and impartial investigations by trained officials; equal opportunity for the accused and accuser to have advisers present during disciplinary proceedings; and notice of disciplinary results and appeal rights. The policy statement must include the standard of evidence that will be used in disciplinary proceedings. VAWA did not codify the Dear Colleague letter's directive that schools use a preponderance-of-the-evidence standard in such proceedings, but institutions would be wise to follow the Education Department's guidance in this regard.
• Confidentiality: Schools must provide information about how they will protect and maintain the confidentiality of victims.
• Aid to victims: Schools must give victims written notice of options for changing academic, living, transportation and working situations and must provide assistance in making those changes if requested. Schools must also give victims notice about services available on and off campus, including mental health, victim advocacy and legal assistance programs.
VAWA makes a few other notable changes to Clery:
• Education: A school's policy statement in its ASR must address educational programs that the institution has put in place to promote awareness of rape, acquaintance rape, domestic violence, dating violence, sexual assault, sexual harassment and stalking. Schools must provide introductory training on the topics to new students and employees and continuing education on the issues to all students and faculty.
• Anti-retaliation: No employee or representative of a school may retaliate against an individual for exercising Clery-protected rights. (The current version of Clery already has a similar provision.)
• Confidentiality: Timely warnings by educational institutions of ongoing threats to campus must withhold the names of victims.
The VAWA amendments to the Clery Act do not officially take effect until 2014. But because reports submitted in 2014 must include accurate statistics based on data from 2013 and an accurate description of the required policies, schools must immediately put in place the required trainings for students, employees and faculty; amend their policies and procedures for Clery and Title IX compliance; and track the new categories of crimes set forth in VAWA.
The VAWA amendments continue a trend of increased federal involvement and interest in the way schools respond to allegations of criminal — especially sexual — misconduct and sexual harassment. Educational institutions must be proactive and vigilant to ensure compliance with their obligations.
Reprinted with permission from the June 25, 2013 issue of the Legal Intelligencer. © 2013 ALM Media Properties, LLC. Further duplication without permission is prohibited. All rights reserved.