Campus Safety & Violence Prevention

Forum

Navigating between Title IX and Clery Intersections

Alison KissExecutive Director©2014 Clery Center

Today’s Goals

Understand the Context

Understanding the Laws

Intersection

Identify Solutions

Sexual Violence Reporting and the Clery Act

Jeanne Clery Act: More on the Law

Originally passed in 1990 as part of the Student Right-to-Know and Campus Security Act.

Amended in 1992, 1998, and 2008 by the Higher Education Amendments. VAWA amendments to Clery 2013.

Codified at 20 USC 1092f

Regulations appear at 34 CFR 668.46

The most recent Final Rules were published in Oct. 29, 2009 Federal Register (pp. 55902-55969), Oct. 31, 2002 Federal Register (pp. 66519-66521), and Nov. 1, 1999 Federal Register (pp. 59060-59073).

Jeanne Clery Act Annual Security Report

Statements of policy Campus crime statistics Campus Sexual Assault Victim Bill

of Rights Ongoing Disclosures

Emergency notification Timely warning Public Crime Log

U.S. Department of Education Enforces

Examples of CSAs

• Professional staff in a dean of students office (including leaders in student affairs/housing)

• Staff in student center building

• Student Activities Staff• Faculty or staff advisors

to student organizations

• Resident Assistants• Coaches

Campus Sexual Assault Victim Bill of Rights

SEX OFFENSE POLICY STATEMENT REQUIREMENTS

1

•® Educational Program to Prevent Sex Offenses

2

•® Procedures to follow When a Sex Offense Occurs

3

•® Option to Notify Law Enforcement

4

•® Notification of on/off Campus Services

5

•® Change of Academic and Living Situation

6

•® Campus Disciplinary Procedures

7

•® Sanctions Following a Final Determination

Sexual Assault Policy Procedures Summary

Simply stating the topic of the policy does not meet the requirement.

All required components must be included.

Institutions have some discretion in the wording and how policies and procedures are put into practice.

It is imperative that the policy accurately reflects what the institution does to promote awareness of sex offenses and the procedures that are followed when a sex offense occurs

Institutions have an obligation to assist victims in notifying off campus law enforcement

Timely Warnings

Ongoing Disclosures• Public Crime Log

• All crimes reported to Police/Security• Public within 2 business days

• Timely warning• Clery crimes, ongoing threat• As soon as pertinent information is available

(case-by-case)

CIRCUMSTANCES THAT TRIGGER WARNINGS?

Clery Act crimes– Included in annual statistics

Reported to CSA or local law enforcement

Occurred in the specified geographic areas:– On-campus– Public property– Non-campus

Represents a serious or continuing threat– Students– employees

TIMELY WARNING DISSEMINATION PROCESS

Must be quick (timely) As soon as pertinent information is available

Community-wide Likely to reach the entire campus community

Aid in the prevention of similar crimes

Specify methods SMS Text messaging E-mail, social media Posters Other methods and/or combination of methods

EXEMPT CASES

Crimes Reported to:Pastoral or professional counselor

Privileged Information Protected by State Law: Medical doctorAttorney/client

Can you withhold?

Yes- if it will compromise the identity of a victim/survivor

If there is no longer a current or on-going threat

Document decisions

©2014 Clery Center

Title IX and Sexual Violence

Title IXTitle IX protects

male & female students from sexual harassment by a school employee, another student or non-employee third party (visiting athlete)

Responding to Sexual Harassment

“Yet as discussed in more detail below, the school’s inquiry must in all cases be prompt, thorough, and impartial” (p. 5).

“In cases involving potential criminal conduct, school personnel must determine, consistent with State and local law, whether appropriate law enforcement or other authorities should be notified” (p. 5).

Title IX Coordinator

“If a recipient designates more than one Title IX coordinator, the notice should describe each coordinator’s responsibilities (e.g., who will handle complaints by students, faculty, and other employees). The recipient should designate one coordinator as having ultimate oversight responsibility, and the other coordinators should have titles clearly showing that they are in a deputy or supporting role to the senior coordinator” (p. 7).

Grievance Procedures

“Title IX does not require a recipient to provide separate grievance procedures for sexual harassment and sexual violence complaints. Therefore, a recipient may use student disciplinary procedures or other separate procedures to resolve such complaints. Any procedures used to adjudicate complaints of sexual harassment or sexual violence, including disciplinary procedures, however, must meet the Title IX requirement of affording a complainant a prompt and equitable resolution” (p. 8).

Prompt and Equitable Resolution of Sex Discrimination

Adequate, Reliable, and Impartial Investigation of Complaints

• Must employ a “preponderance of the evidence standard” (pp. 10-11).

• “Throughout a school’s Title IX investigation, including at any hearing, the parties must have an equal opportunity to present relevant witnesses and other evidence. The complainant and the alleged perpetrator must be afforded similar and timely access to any information that will be used at the hearing” (p. 11).

Prompt and Equitable Resolution of Sex Discrimination

Adequate, Reliable, and Impartial Investigation of Complaints

Cannot rely solely on law enforcement investigations (pp. 9-10).

Should inform victim of the right to notify law enforcement and not attempt to dissuade the victim from doing so (p. 10).

©2014 Clery Center

Responsible Employees

Title IX & Responsible Employees

A school has notice if a responsible employee “knew or in the exercise of reasonable care should have known” about the harassment

Schools should inform and obtain consent from the complainant before beginning an investigations

©2014 Clery Center

Title IX and Clery Intersection

CLERY ACT & TITLE IX INTERSECTION

Disclose policies and procedures

Prompt corrective action – change of academic or living situation

Accused/accuser notified of outcome at the same time and same manner Title IX specifies both parties be notified in writing

Disclose sanctions imposed Title IX requires interim protective measure while

investigation is taking place

Overview: The Clery Act

General Mandate The Clery Act requires participating educational

institutions to disclose campus crime statistics and security information in the form of: – Daily crime logs – Timely warnings – Emergency notifications – Annual security report

Applicability All post-secondary institutions, private and public,

that participate the Higher Education Act of 1965 (HEA)’s Title IV student financial assistance programs must comply with the Clery Act

What is covered under Title IX?

Relation to the institution relevantTitle IX protects male and female

students from sexual harassment by a school employee, another student or a non-employee third party (e.g. visiting speaker or visiting athletics).

• 2001 DOE Guidance Letter pg. 3

GeographyCan be off campus, as long as the

activity is related to the institution

What is covered under Clery?

Relation to the institution irrelevant The institution should count all Clery Act crimes within

the Clery geography even if they involve individuals not associated with the institution.

» (Handbook for Clery Reporting pg. 54)

Clery Crimes: Include sexual assault offenses, both forcible and non forcible.

» (Handbook for Clery Reporting pg. 33; 34 CRF 668. 46(c)

VAWA (Campus SaVE) expands Clery crimes to include intimate partner violence, including stalking, dating violence and domestic violence offenses.

What is covered under Clery?

Geography – A covered institution must only disclose

statistics for reported Clery crimes that occur:(1) on campus,(2) on public property within or immediately adjacent to the campus, and (3) in or on non-campus buildings or property that your institution owns or controls.

(Handbook for Clery Reporting pg. 54).

Procedural Requirements for Compliance

Title IX

Dissemination of Policy

Designation of Title IX coordinator

Adoption of Grievance Procedures

CleryPolicy Statement (Sex Offenses)

Must include: Description of educational programs

to promote SA awareness Procedures students should follow if

a SA occurs Information on notifying appropriate

authorities Information about available mental

health resources Notification of option to change

living situation Procedures for campus disciplinary

action

Appropriate Reporters Title IX

Responsible Employee standard A school has notice if a responsible

employee “knew or in the exercise of reasonable care should have known” about the harassment.

Includes “any employee who has the authority to take action to redress the harassment, who has the duty to report to appropriate school officials sexual harassment or any other misconduct by students or employees, or an individual who a student could reasonable believe has this authority or responsibility.”

Clery ActMust be reported to a campus security authority (CSA), which includes:

A campus police department or a campus security department of an institution.

Those responsible for campus security but who does not constitute a campus police department or a campus security department

Those specified in an institution’s statement of campus security policy as source to which students and employees should report criminal offenses

An official of an institution with significant responsibility for student and campus activities, including, but not limited to, student housing, student discipline and campus judicial proceedings

• If someone has significant responsibility for student and campus activities, he or she is a campus security authority. (Handbook for Clery, pgs. 74-75)

Important Distinctions Title IX: Faculty are considered appropriate persons

Clery Act holds academic faculty members who don’t have responsibility outside of the classroom to be unsuitable

Sexual assaults that are only reported to faculty and are not subject to further proceedings (e.g. the student doesn’t go on to press charges) are not reported under the Clery Act.

– However, if sexual assaults are reported to a CSA, the institution is required to include it as part of its Clery statistics regardless of whether the student decides to press charges or the lack of any further legal proceedings.

Handbook for Clery reporting pg. 76

Enforcement Mechanisms

Title IXPenalty for Violating

Statute No fee, potential revoking

of federal aid

Administrative enforcement by OCR

Private right of action against school Applies to private and

public schools for student-on-student and teacher-on-student harassment

The Clery Act Penalty for Violating

Statute If DOE finds that the

institution is in violation, it can issue civil fines of up to $35,000 per violation. (Handbook for Clery Reporting pg. 9).

No private right to sue or receive compensation The individual must write a

grievance to DOE and only DOE can bring action against the institution.

Reporting Obligations: Title IX

Reporting timeline Upon notice of possible sexual assault, school should take

“immediate and appropriate” steps to provide a remedy

Confidentiality issues Schools should inform and obtain consent from the

complainant before beginning an investigation.

Reporting Obligations: Clery

Timely Warning Policy Timely warnings must be issued to the campus

community regarding any Clery crime that occurs on your Clery geography that is: – Reported to campus security authorities or local

police agencies; and – Is considered by the institution to represent a

serious or continuing threat to students and employees.

When to issue a timely warning?– Case-by-case basis

• Handbook for Clery Reporting 11; 34 CRF 668.46(e)

Outcomes: Title IX

• Notice of outcome Both parties must be notified concurrently

about the outcome of both the complaint and any appeal– Must be related to the case: Disclosures about

unrelated sanctions may result in a violation of FERPA

• Non-disclosure agreements– Postsecondary institutions may not require a

complainant to abide by a nondisclosure agreement

Outcomes: Clery Act• Notice of outcome

– Victims and perpetrator must be simultaneously informed of campus court proceedings results

• Non-disclosure agreements– Institution cannot require victim to sign non-disclosure

agreement

• Identity of victim and perpetrator– Prohibits personally identifiable information from being

included in institution’s disclosure of crime statistics

CLERY ACT & TITLE IX INTERSECTION

Disclose policies and procedures

Prompt corrective action – change of academic or living situation

Accused/accuser notified of outcome at the same time and same manner Title IX specifies both parties be notified in writing

Disclose sanctions imposed Title IX requires interim protective measure while

investigation is taking place

CLERY ACT & TITLE IX FOSTER COLLABORATION

Institutions should foster and promote collaborative approach with police/security departments and Title IX coordinator

Police/security department should be able to identify Title IX coordinator

Together police/security department set the stage for comprehensive response

Developing Collaborative Support Services

TYPES OF SUPPORT SERVICES

Information and referral following the crime

Crisis and long-term counseling services and/or referral for therapy

Accompaniment to medical and legal appointments

Academic intervention as needed

ON- CAMPUS SUPPORT SERVICES

Level or extent

Implement range of

programs

Collaborative partnerships

Institutions should decide on:

FACTORS INFLUENCING LEVEL OF SUPPORT SERVICES

Qualified staff crisis counseling long-term therapeutic services

Facilities for confidential services Liability concerns Resources available

IDENTIFY AND ASSESS EXISTING ON-CAMPUS RESOURCES

Identify services

Determine the quality

Identify needs

Determine resources and

Desire to develop/expand

IDENTIFYING SERVICE NEEDS-STRATEGIES

Students Faculty Administration

Check the Pulse of:

WHY COLLABORATE FOR CLERY COMPLIANCE?

Provides more opportunities

Provides a comprehensive approach

Creates public recognition/visibility

Enhances survivor-centered policies

Prevents duplication

Accomplishes what one alone can’t

©2014 Clery Center

THANK YOU!

Clery Center for Security On Campus, Inc.110 Gallagher RoadWayne, PA 19087(484) 580-8754

e-mail: akiss@clerycenter.orghttp://www.clerycenter.org