Title IX, the Clery Act, and Allegations of Sexual Assault On or Off Campus

November 27, 2018

By Keffer Hirschauer LLP

Many individuals know that college and universities must comply with the requirements of Title IX. However, individuals may not be as familiar with the Clery Act and its similar requirements. Some maintain that the Clery Act and its obligations are even more powerful than Title IX. https://www.campussafetymagazine.com/university/clery-act-has-prompted-positive-changes-in-campus-public-safety/ (last visited November 17, 2018). The Clery Act, which was passed in the 1960’s and has been amended several times since, requires that any college or university that participates in federal financial aid programs must keep and disclose information about crime on or near their campuses. The Department of Education monitors compliance with the Clery Act. An institution found to be in violation of the Act can be fined or suspended from participating in federal student financial aid programs. In 2013, there were changes made to the Clery Act by the Violence Against Women Reauthorization Act (“VAWA”), which require that training cover state law definitions of sexual assault, stalking, and relationship violence. According to the Clery Center, the VAWA amendments to the Clery Act enlarge the rights given to campus survivors of sexual assault, domestic violence, dating violence, and stalking. https://www.clerycenter.org/vawa-dfsca-ferpa (last visited November 17, 2018). The expanded legislation also outlines the role of law enforcement, the kinds of crimes required for reporting, and stipulates the need for violence prevention programming. Colleges and universities must provide detailed date concerning alleged incidents of sexual assault, dating violence, domestic violence and stalking. For example, the fifty-eight page 2017 Annual Security Report for the Indiana University South Bend and Elkhart states that, “all community members, including students, faculty, staff, and guests, are encouraged to accurately and promptly report all criminal or suspicious actions and any potential emergencies to the Indiana University Police Department (IUPD) or appropriate law enforcement agency, including when the victim of a crime elects to, or is unable to, make such a report.” https://protect.iu.edu/doc/police-safety/asr/asr-iusb-2017.pdf (last visited November 17, 2018). As required by law or policy, an incident report may be forwarded to others including: the office of Vice President and General Counsel, the Title IX Coordinator, Human Resources, Academic Affairs, Office of Insurance, Office of Housing and Residence Life, Office of Student Conduct, and the Dean of Students. In addition to the institution’s annual report, the Clery Act also requires that colleges and universities timely notify the campus community of a security or safety threat on or near campus. This is usually done through text or email blasts to the campus network. According to the Department of Justice, “[t]he Clery Act also promotes transparency and ongoing communication about campus crimes and other threats to health and safety and empowers members to take a more active role in their own safety and security.” https://www.justice.gov/archives/ovw/page/file/910306/download (last visited November 17, 2018). Even if an allegation of sexual violence did not occur in the context of an educational program or activity on campus, the institution may have an obligation to process the compliant. In many instances, a student facing a Title IX or Clery Act allegation on or off campus may not understand his or her rights or the obligations or requirements of the college or university in those circumstances. Despite this lack of information, a student may be asked by the university or law enforcement to make quick and critical decisions that could significantly impact his or her career at the university or even his or her physical freedom. Knowing your student rights and your constitutional rights are critical when facing a Title IX or Clery Act investigation. If you are a student facing a Title IX or sexual assault allegation, contact the attorneys at Keffer Hirschauer LLP today. We stand ready to provide our clients with trusted representation and accurate information regarding the law and its application to their individualized history. Act now and contact us today at (317) 857-0160.