As the 2020 COVID-19 pandemic has profoundly changed all our lives and moved higher education to a distance education model the Jeanne Clery Act still offers important tools to provide for a safe learning environment. Two of these tools are the emergency notification provisions which apply to infectious diseases, and the Violence Against Women Act (VAWA) framework for responding to reports of dating violence, domestic violence, sexual assault, or stalking. As always the goal of Clery is safety through transparency and fairness.
While the Clery Act’s emergency notification requirement, added in 2008, is best known in the context of threats like mass shootings and hurricanes it actually has a much broader “all hazards” scope for “immediate” threats. Unlike the timely warning the U.S. Department of Education (ED) says that it “applies to a wider range of threats, such as crimes, gas leaks, highly contagious viruses, or hurricanes”. This provision applies even to a reduced campus population and over the long-term as we continue to address COVID-19 and other public health challenges.
In terms of how institutions “confirm” a health emergency as opposed to other types of emergencies ED notes “Institutions also have the flexibility to list the organizations that may be best equipped to respond to different situations, for instance, the health department may best respond to an outbreak of a virus.” Collaboration with local, state, national, and even international public health agencies is therefore an essential component in utilizing this tool.
The VAWA framework, added in 2013, continues to provide for “a prompt, fair, and impartial… disciplinary proceeding” in gender based violence cases. This applies both to pending cases as well as any new cases as the rules apply “whether the offense occurred on or off campus” (meaning they’ve always applied to online learning or employees working remotely so optimally procedures to address these circumstances should already exist). Students and employees who are either complainants or respondents continue to deserve and need this resolution.
As with moving to distance education there are going to be challenges involved in moving investigations and hearings to an online format. Many of the lessons we’re learning from that process will apply in this context as well including the need to be flexible. The central tenet is that proceedings be “consistent with the institution’s policies and transparent to” the parties. When delays are necessary they must be clearly explained as will any adjustments such as procedures to ensure that parties have the ability to privately consult with their advisor of choice when they may not be in the same place.
This is an extremely challenging time for all of us, our team and clients are finding themselves doing things they never expected they’d be called on to do, but our shared goal remains providing safe learning environments. The Clery Act affords us important frameworks to continue to achieve this goal.
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.