The VAWA Requirements Operate as a Companion to Title IX
While best known for crime statistics and timely warnings the Clery Act also serves as a companion to the sex discrimination civil-rights law Title IX. Clery requires colleges and universities to enact a policy that “prohibits the offenses of domestic violence, dating violence, sexual assault, and stalking”. Supportive measures for students and employees who report are also required along with specific rights for both complainants and respondents in disciplinary proceedings.
These requirements don’t diminish an institution’s Title IX obligations in any way, unwelcome conduct of a sexual nature remains prohibited, but rather they establish additional expectations for responding to misconduct when it is also allegedly criminal. Additionally, unlike Title IX the provisions apply “whether the offense occurred on or off campus”. There are no private lawsuits under Clery, like there are under Title IX, but both can be administratively enforced by the U.S. Department of Education. Clery fines are currently $62,689 per individual violation.
Although forms of sexual assault were recognized as implicating Title IX obligations to respond at least as early as 1981, no consistent enforcement process existed in higher education. This led Congress to enact the Campus Sexual Assault Victim’s Bill of Rights in 1992 as part of the Campus Security Act, now the Clery Act, which took effect for the 1993-1994 academic year. Among other things it required adoption of a “policy regarding… Procedures for on-campus disciplinary action in cases of alleged sexual assault”.
Responding to ongoing concerns, Congress significantly expanded these requirements as part of the Violence Against Women Reauthorization Act of 2013 which took effect with the 2014-2015 academic year. In addition to adding dating violence, domestic violence, and stalking, which along with sexual assault are known as the “VAWA offenses”, the scope of supportive measures and rights in disciplinary proceedings were expanded.
A student or employee who reports that they have been the victim of a VAWA offense is entitled to certain rights, whether or not they pursue disciplinary proceedings, including:
- To be provided with a “Survivor’s Brochure” outlining their rights and options
- To be assisted by campus authorities in notifying law enforcement authorities, on or off campus
- To decline to notify law enforcement with no diminishment in other rights
- To be protected under lawful orders of protection, such as court issued “no contact” orders
- To have their personally identifying information kept confidential, except where necessary to provide supportive measures or undertake disciplinary proceedings
- To be offered changes to academic, living, transportation, and working situations or other protective measures, if requested by the victim and they are reasonably available
- To be protected from retaliation by the institution for making a report
If an institution undertakes disciplinary proceedings in cases of alleged dating violence, domestic violence, sexual assault, or stalking both the complainant and respondent are entitled to enumerated rights, including:
- A prompt, fair, and impartial process from the initial investigation to the final result
- Proceedings conducted by officials trained on the VAWA offenses, conducting an investigation, conducting a hearing, and any appeals of those proceedings
- The same opportunities to have others present, including an advisor of choice who may be an attorney
- Simultaneous written notification of meetings, any delays in proceedings along with an explanation for the delay, and any initial, interim, or final result (disclosure of the results is unconditional and not restricted by FERPA)
In order to meet the prompt, fair, and impartial requirement proceedings must:
- Be consistent with the institution’s policies and transparent to the complainant and respondent
- Designate specific timeframes for proceedings, including a process that allows for an extension for good cause so long as written notice is provided that includes an explanation
- Include timely notice of any meetings where the complainant or respondent may be present
- Provide timely and equal access to the complainant, respondent, and appropriate officials any information that will be used during disciplinary proceedings
- Be conducted by officials who don’t have a conflict of interest or any bias for or against the complainant or respondent
This is not an exhaustive list of all elements required by the Clery Act in these cases, but rather is intended to offer an introduction. Specific questions may be directed to cleryquestions@safecampuses.biz.
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.
