The Department of Education has published new regulations interpreting and applying the newly modified Jeanne Clery Disclosure of Campus Security Policy and Campus Crime Statistics Act (Clery Act). The rules include a significant change in the scope of incidents that the law requires colleges and universities to report, as well as new requirements regarding procedures for adjudicating sexual violence allegations.
On October 20, 2014, the Department of Education issued rules implementing changes to the Clery Act instituted by the Violence Against Women Reauthorization Act of 2013 (VAWA). As the name suggest, the VAWA focuses on sexual assault and related issues that particularly pertain to female victims. After the passage of the VAWA, the Department of Education announced that it would issue new regulations reflecting the VAWA’s changes to the Clery Act. The October 20 rules accordingly contain a variety of new requirements focused on sexual violence. These include:
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a new requirement that institutions disclose in their annual security report the number of “unfounded” crime reports that it has investigated, and strict new limitations on when colleges may omit “unfounded” allegations from its reports;
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a requirement that the institution’s disciplinary proceedings be prompt, fair and impartial and that they implement certain specific procedural guarantees including equal representation and notification;
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a requirement to report to the Department on disciplinary proceedings and timelines at the institution, and specifically to explain how these address sexual assault and similar crimes;
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a requirement to provide prevention and awareness programs on sexual misconduct that meet certain specific criteria, and a mandate to report these efforts to the government as well;
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new or clarified definitions of “rape,” “dating violence,” “domestic violence,” “sexual assault,” and “stalking” and requirements that such crimes be reported; and
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new “hate crime” categories encompassing gender identity.
Initial press focused on the new requirement that institutions disclose reported but ultimately “unfounded” crimes that it had investigated. Previously, the Clery Act did not require that institutions report such “unfounded” criminal allegations, and clearly this is a significant change for institutions covered by the Clery Act. However, the remaining modifications may prove no less significant. The new procedural requirements, for instance, are more specific in many respects than the similar (but more general) requirements under Title IX.
College and University officials with any responsibility over campus crime should consult with the school’s Title IX and Clery Act coordinators regarding these new requirements. These new regulations potentially have a far-reaching effect on an institution’s’ legal obligations.
