As colleges and universities prepare to implement new Title IX policies by the August 14, 2020 effective date of new regulations it is important to not forget related Jeanne Clery Act requirements. Institutions of higher education must comply with both laws. This means publicly disclosing summaries of new sexual violence policies and integrating existing Clery requirements into new Title IX policies when applicable.
As amended by the Violence Against Women Reauthorization Act of 2013 (VAWA) the Clery Act requires institutions to disclose a summary of their sexual violence policies publicly as part of an annual security report (ASR) alongside crime statistics. VAWA also requires that institutions adopt certain specific policies for responding to and conducting disciplinary proceedings in “dating violence, domestic violence, sexual assault, and stalking” (VAWA offenses) cases.
The new Title IX rule specifically incorporates the VAWA offenses as one of three forms of covered “sexual harassment” institutions are required to respond to squarely creating an overlap. For those cases where this overlap occurs the new Title IX requirements must be reflected in the ASR’s policy statements, and any new Title IX policy must also meet each of the Clery requirements. The Clery requirements include addressing allegations “whether the offense occurred on or off campus” and “a prompt, fair, and impartial process from the initial investigation to the final result” for both complainants and respondents if disciplinary proceedings are initiated.
As part of this process it is also important to recognize that the Clery Act does not change any Title IX requirements rather it applies alongside them. Nothing in the Clery Act altered any prior obligations under Title IX nor does it now. Likewise nothing in the new Title IX rule forecloses complying with the Clery Act.
The U.S. District Court for the District of Columbia in 2015 held that the VAWA amendments to Clery “had no effect on Title IX.” (Doe v. U.S. Dept. of Health and Human Services, 85 F. Supp. 3d 1, 5 (2015)) The U.S. Department of Education (ED) in the “preamble” to the new Title IX rule similarly says, on page 30523, “The Department acknowledges that there are different requirements in the Clery Act and its implementing regulations. The obligations that recipients have under these final regulations and under the regulations implementing the Clery Act differ in some respects, but there is no inherent conflict between the two statutory schemes or their respective implementing regulations.”
While the August 14th Title IX deadline is fast approaching (barring intervention from a court) ED has extended the usual October 1st deadline for publishing ASRs to December 31st due to the COVID-19 pandemic. This will afford institutions additional time, where needed, to fully assess new policies and where there is overlap summarize them for inclusion in the ASR.
This blog does not provide legal advice and does not create an attorney-client relationship. If you need legal advice, please contact an attorney directly.