U.S. Department of Education Clarifies That Title IX Officials Must Report For Clery
The U.S. Department of Education quietly updated guidance on January 19, 2021 to clarify that “any official…who has the authority to institute corrective measures” under the 2020 Title IX Rule “will” also be a Campus Security Authority (CSA) and thus required to report crimes under the Jeanne Clery Act at institutions of higher education for the purposes of gathering crime statistics and issuing timely warnings. The guidance comes in an updated version of the “Clery Act Appendix for FSA Handbook” which was initially released last October and at that time stated that such officials “may or may not” be required to report.
The 13 page guidance document replaced a plain language Clery Act handbook that practitioners had relied upon since 2005, including updates in 2011 and 2016. The October document was the first official Clery guidance directly addressing the intersection with the 2020 Title IX Rule addressing how federally funded educational programs respond to “sexual harassment” including sexual assault.
This clarification aligns with the regulatory definition of a CSA which since 1999 has provided that it includes “An official of an institution who has significant responsibility for student and campus activities, including, but not limited to, student housing, student discipline, and campus judicial proceedings.” This does not require institutions to disclose personally identifying information to law enforcement or initiate a criminal investigation.
Jeanne Clery Act Fines Increased To $59,017
On February 3, 2021 the U.S. Department of Education increased fines for violating the Jeanne Clery Act from $58,328 to $59,017. Pursuant to the Federal Civil Penalties Inflation Adjustment Act Improvements Act of 2015 the Department is required to adjust fines for inflation every year.
The increased amount applies to any violations that occurred after November 2, 2015 and for which the penalty was imposed after February 3, 2021. Due to a five-year statute of limitations on Clery fines this means that any per violation penalty going forward will be at least $59,017.
Biden Administration Asks For 60 Day Pause On Case Challenging 2020 Title IX Rule
The Biden Administration on February 3, 2021 asked a Federal court considering a challenge to the 2020 Title IX Rule to put that case on hold “for sixty (60) days, up to and including Monday, April 5, 2021…to allow incoming Department leadership to review the underlying rule at issue in this case.” The new Administration, which began on January 20, 2021, has promised to rescind the Title IX Rule although no specifics about exactly how or when have been offered to date.
