A Common Sense Guide to Achieving Meaningful Compliance
By Jovita Foster, Partner and Salama Gallimore, Associate, Armstrong Teasdale
The summer is a great time for college and university officials to begin compiling campus crime statistics and gathering policies and procedural information for reporting mandated by the Clery Act. The law requires institutions to file accurate Annual Security Reports (ASRs) by Oct. 1, 2018, to avoid being fined $54,789 per violation by the U.S. Department of Education.
In order to file accurate ASRs, college and university leaders must understand the intersection of the Clery Act and Title IX compliance so that all reports received by campus security authorities, like the Title IX coordinator, are accurately counted and classified.
Administrators can also work together during the summer months to gather information regarding efforts to educate the campus community about what are considered Clery Act reportable crimes, including sex-based violence, to ensure these incidents are included in their ASR.
The Jeanne Clery Disclosure of Campus Security Policy and Crime Statistics Act (Clery Act) as updated to include the Campus Sexual Violence Elimination Act (Campus SaVE Act) imposes specific requirements on educational institutions to track, report, address and prevent crime on campus.1 The Clery Act works in tandem with Title IX of the Education Amendments of 1972. Title IX prohibits all forms of sex discrimination including gender-based harassment and sexual and dating violence at educational institutions receiving federal funding.2 The Department of Education can impose civil penalties on educational institutions for failing to comply with the requirements of the Clery Act. Similarly, when institutions have actual knowledge of sex discrimination and are deliberately indifferent to it, they can incur civil liability.3
Important requirements of the Clery Act and Title IX best practices
The requirements under the Clery Act and Title IX are distinct, but both laws have the goal of providing a safe, respectful and transparent educational environment for students and employees. By planning ahead and working together, university administrators can ensure that their institutions are compliant with the Clery Act and Title IX by publishing accurate crime statistics, collaborating with campus resources, and achieving important goals pertaining to education and crime prevention.
The Clery Act requires that educational institutions report crime statistics in ASR.4 Reportable offenses under the Clery Act include, but are not limited to: sexual assault, rape, intimidation, fondling, dating violence and stalking – conduct also prohibited by institutional Title IX policies.5 On a university campus, students and employees can seek assistance from many different individuals and entities, which means that multiple individuals or departments can receive the same report of on-campus6 conduct, and therefore all parties must report that conduct for purposes of Clery Act compliance. Due to the development of Title IX programs and the increased visibility of Title IX coordinators at universities, campus police and security officers are not the only campus employees who receive or respond to reports of crimes like sexual assault, stalking and dating violence. In fact, students and employees may choose to report crimes to other individuals, such as Title IX coordinators, and not report to campus police at all.
It is important for Title IX coordinators, disciplinary and/or student conduct administrators, campus police and residential life staff members to collaborate and devise a process for reporting and classifying criminal behaviors in order to ensure an accurate ASR.
The increase in support services for students and employees at educational institutions is a benefit but can lead to the misclassification or double-counting of Clery Act-reportable crimes for purposes of the ASR. Some universities employ a full-time Clery coordinator who is solely responsible for identifying and training Campus Security Authorities (CSAs)7 and analyzing the data provided by CSAs for inclusion in the ASR.
Procedures and resources
The Clery Act also requires institutions to timely warn members of the campus community in order to inform individuals of imminent threats or emergencies occurring on campus.8 Because Title IX coordinators may be the first to know of such criminal acts, it is imperative that coordinators and their staff know the kinds of crimes that are reportable and how the reportable crimes are defined. At many institutions, the campus police issue timely warnings; therefore, the Title IX office and campus police department should have protocols in place that can be quickly followed in the event that a timely warning must be issued. When issuing timely warnings, universities should be proactive in notifying the victim or survivor that a warning will be issued and clearly explain that the warning will not include personally identifiable information.
Further, the Clery Act demands that ASRs include procedures that inform victims or survivors how to report sexual violence, dating violence and stalking, and describe their rights and options after reporting.9 In most cases, the Title IX coordinator will already have created these materials, which can be easily included in the ASR. However, the Clery Act requires the inclusion of particular information in the ASR, and it is a best practice to include the same information in written resources provided by the Title IX coordinator or Title IX office. Key points to cover in the ASR and in informational materials provided by the Title IX coordinator include:
- A description of the impartial institutional investigative and adjudication process for sexual violence, dating violence and stalking, including how to file a complaint, anticipated timelines and information regarding the decision-making and appeal process.10
- The standard of evidence used during any institutional disciplinary proceeding.
- A list of all possible sanctions that the institution may impose on an individual found responsible for sex-based violence or stalking.
- A list of the protective measures that the institution can offer an individual who has experienced sex-based violence or stalking.
- The ability of an individual involved in the institutional Title IX process to have an advisor who provides support and guidance throughout the process.
Campus administrators should collaborate strategically to determine all possible protective measures to stop sex-based violence and prevent its reoccurrence. Common measures include institutional no contact orders, housing and course adjustments and interim suspensions. Administrators and Title IX coordinators who remain impartial, open to suggestions and inclusive in developing and proposing protective measures are more likely to be successful in ensuring that individuals can continue to safely access education.
Protective measures may also be educational or support resources to which an institutional employee can refer a complainant or respondent.11 For example, complainants and respondents may benefit from referrals to counseling and mental health services, physical health services (including forensic nurses), academic support services and legal services. Complainants also benefit from referrals to crisis centers, emergency housing shelters and organizations or legal professionals who can assist the complainant in obtaining an order of protection or restraining order.
Prevention and education
The Clery Act also requires institutions to address ongoing programs implemented to prevent dating violence, domestic violence, sexual assault and stalking in ASRs.12 These programs should be designed to “increase audience knowledge and share information and resources to prevent violence, promote safety and reduce perpetration.”13
Colleges and universities must have a policy in their ASR about primary education and awareness programs for incoming students and employees, as well as ongoing prevention and awareness campaigns.
Title IX coordinators, student groups, on-campus survivor advocates, peer educators, mental health professionals and community organizations are important resources to involve and consider when creating ongoing prevention programs. Cross collaboration between students, faculty and employees is paramount in creating effective and inclusive prevention programs. In selecting educational programming and/or campaign topics, institutions should consider focusing on:
- Policies and laws prohibiting dating violence, domestic violence, sexual assault and stalking.
- Legal and policy definitions of dating violence, domestic violence, sexual assault and stalking.
- The definition of consent for sexual activity within the local jurisdiction and within institutional policies.
- Bystander intervention, meaning safe and positive options an individual or individuals can employ to intervene when there is a risk of sex-based violence in order to prevent harm.
- The cycle of violence, the escalation of abusive behavior and methods to assess the risk of potential attack.
- Programs that address how sex-based violence impacts individuals with marginalized identities.
- Procedures for victims to follow in order to: preserve evidence, report an offense to an institution, report to police, receive assistance from the campus, decline to report to campus or police, obtain protective or other orders regarding safety and request confidentiality.
- Resources available for physical and mental health treatment, and legal assistance or advocacy.
- Protective measures or options for academic, living, transportation and working accommodations.
Achieving meaningful compliance
It takes the effort of an entire campus to achieve compliance with federal laws designed to prevent, educate and provide transparency around sex-based violence and stalking on campus. Institutions should be inclusive in recruiting a diverse team of individuals from various professional backgrounds, including students and student organizations, to assist in education and prevention work. Additionally, universities should take time to review and evaluate their educational programs and campus resources dedicated to serving individuals who have experienced or been accused of sex-based violence or stalking. It is important for institutions to comply with the Clery Act because victims/survivors, student allies, faculty, alumni and other concerned individuals can file complaints against institutions, which also face civil liability for noncompliance with Title IX. But ultimately, compliance is about institutions working collaboratively to foster and develop a safe, inclusive and respectful environment on campus where individuals of all backgrounds and identities can thrive.
Disclaimer: The contents of this article do not constitute legal or regulatory advice or counsel. No person or entity should act, or refrain from acting, on the basis of the information discussed herein without seeking individualized, professional counsel as appropriate.
- 20 U.S.C. § 1092 et seq; 34 C.F.R § 668.46 et seq
- 20 U.S.C. § 1681 et seq.
- Davis v. Monroe County Bd. of Educ., 526 U.S. 629 (1999).
- 34 C.F.R § 668.46(b)
- 34 C.F.R. 668.46(c)
- 34 C.F.R. 688.4(c)(4) requires institutions to disclose statistics for reported Clery Act crimes that occur on campus, on public property within or immediately adjacent to campus, and in or on noncampus buildings or property owned or controlled by the institution.
- Per 34 C.F.R. 668.46(a) CSAs include: campus police and security officers, any individual or organization specified in a campus security policy as an individual or organization to which students and employees should report criminal offenses, officials of institutions who have significant responsibility for student and campus activities, etc.
- 34 C.F.R. 668.46(e)
- 34 C.F.R. 668.46(b)
- 34 C.F.R. 668.46(k)(1)-(3)
- Referred to in the Clery Act as “accuser” and “accused”
- 34 C.F.R. 668.46(j)
- 34 C.F.R. 668.46(j)(2)
JOVITA FOSTER is an experienced litigator at Armstrong Teasdale and trusted advisor to colleges and universities in all facets of employment and labor law. She has extensive experience ensuring compliance with Title IX, the Clery Act, the Violence Against Women’s Act, FERPA and Title VII. Jovita provides counsel on faculty affairs, governance and board of director concerns, and has significant experience in disputes involving students, faculty and/or administrators. She has also successfully represented higher education clients in disputes before the Office of Civil Rights, the EEOC, state civil rights agencies and in various courts.
Contact Information: Jovita Foster // Armstrong Teasdale // Partner // 314-55206698 // firstname.lastname@example.org // https://www.armstrongteasdale.com
SALAMA GALLIMORE is a skilled litigator at Armstrong Teasdale with a deep knowledge of state and federal employment laws, as well as Title IX. As a former director of investigations and deputy Title IX coordinator for a university, she has significant experience conducting investigations into allegations of discrimination, as well as drafting position statements and responses to Equal Employment Opportunity Commission and Missouri Commission on Human Rights charges. Salama also trains and educates higher education professionals on the policies and regulations that impact them.
Contact Information: Salama Gallimore // Associate // Armstrong Teasdale // 816-472-3158 // email@example.com // https://www.armstrongteasdale.com