West Virginia Foundation for Rape Information and Services

Federal Legislation Affecting Colleges

 

The Clery Act

The Jeanne Clery Disclosure of Campus Security Policy and Campus Crime Statistics Act (otherwise known as the Clery Act) is a federal statute codified at 20 USC. §1092(f), with implementing regulations at 34 C.F.R. 668.46. It is named after Jeanne Clery, a 19-year-old college student who was raped and murdered in 1986 in her Lehigh University dormitory (Clery Center, 2017c). This consumer protection law was passed in 1990 and has been amended several times, with the aim of providing transparency and consistency around campus crime policies and statistics (Clery Center, 2017b).

 

(Note that this section provides a summary not the actual related laws.)

 

 

What Does the Clery Act Require?

(Drawn from Clery Center, 2016, 2017a)

 

Generally, the Clery Act requires that (1) colleges who receive federal funding (Title IV) to share information with the U.S. Department of Education (DOE) about crime on campus and their efforts to improve campus safety; and (2) colleges inform the public of crimes in or around campus. (Clery compliance is monitored by the DOE.) The information required by Clery is to be made publicly accessible through an institutional annual security report (ASR), which includes statistics of campus crime for the preceding 3 calendar years, plus details about efforts taken to improve campus safety. Colleges must outline their policies and procedures in their ASRs, including those related to:

 

• Disseminating timely warnings and emergency notifications about crimes that pose a serious or continuing threat to the campus community;
• Prevention of/response to sexual assault, domestic and dating violence and stalking; and
• Campus crime reporting processes.

If a college has a law enforcement or security department, the Clery Act also requires these entities to maintain a public daily crime log of crimes reported to them or those of which they are otherwise made aware. They must make the most recent 60 days’ worth of logged information publicly available during their business hours. Logged information more than 60 days old must be made available within 2 business days. Crime logs must be kept for 7 years.

 

 

Who Reports Clery Crime Statistics?

(Drawn from Clery Center, 2016, except where noted)

 

Crime statistics compiled for the ASR and shared with the DOE include those captured under Clery and within a college’s Clery geography that are reported to or documented by “campus security authorities” (CSAs). The Clery Act requires CSAs to report crimes as per college policy, even if a victim does not file a report. CSAs are identified by job function, not title:

 

• A campus police department or a campus security department of an institution;
• Any individuals who have responsibility for campus security but who do not constitute a campus police department or a campus security department;
• Any individuals/organizations specified in an institution’s statement of campus security policy as an individual or organization to which students and employees should report criminal offenses; and
• Institutional officials who have significant responsibility for student and campus activities, including, but not limited to, student housing, student discipline and campus judicial proceedings.

Examples of CSAs include deans of students, directors of athletics, team coaches or faculty advisors to student groups, student resident advisors/ assistants or students who monitors access to dormitories; coordinators of Greek affairs. Campus victim advocates typically are considered CSAs. Examples of who is generally exempted from being CSAs include faculty who do not have responsibility for student or campus activities outside of the classroom; support staff such as clerical, maintenance and food service workers; and professional and pastoral counselors who are only responsible for student care. (Paragraph drawn from Office of Postsecondary Education, U.S. DOE, 2016).

 

Colleges typically publicize their CSA policies and procedures, including who specifically are CSAs; what information needs to be shared/to whom; and the reporting process.

 

 

 

Campus Sexual Assault Victims' Bill of Rights

The federal Campus Sexual Assault Victims' Bill of Rights was enacted as a component of the 1992 amendments to the Higher Education Act of 1965 (Public Law: 102-325, section 486(c)). It is now part of requirements of the Clery Act. It requires colleges to provide rights to sexual assault victims on campus, as well as to the accused (Center for Public Integrity, 2010):

 

• Give complainants (victims) and respondents (accused) equal opportunity to have others present in disciplinary proceedings and equal notification of outcomes of such proceedings;
• Notify complainants of counseling services and their right to pursue legal options through local law enforcement; and
• Notify complainants of their option to change classes or dormitory assignments to avoid contact with respondents.

 

Campus SaVE Act Requirements

The 2013 reauthorized Violence Against Women Act (VAWA) included the Campus Sexual Violence Elimination Act (Campus SaVE Act), which amended the Clery Act. It expanded upon several rights for sexual assault victims and respondents in the Campus Sexual Assault Victims' Bill of Rights as well as broadened the rights to apply to victims and respondents in sexual violence, dating violence, domestic violence and stalking cases. Basically, Campus SaVe Act requires colleges which participate in Title IV financial aid programs to compile statistics of reported incidents of sexual assault, domestic violence, dating violence and stalking that occur within their Clery geography. It also requires colleges to include a statement in their ASR of their related policies and procedures (see below).

The Campus SaVE Act also includes requirements for prevention and awareness programming for incoming students and new employees, and ongoing programs for students and faculty.

 

 

For More Information

Go to the Clery Center for more information on Clery Act policies. Also see WVFRIS’s West Virginia Prevention and Interpersonal Violence Intervention Training (PIVIT) Toolkit: Prevention Edition, Section C.

 

 

Other Campus Safety Legislation

The Clery Act is one piece of campus safety legislation to which colleges are required to comply with if they receive funding under Title IV. There are other laws that govern institutional reporting and policies around campus violence, in addition to state and local law. (Clery Center, 2018)

A summary of key laws that are relevant to college students dealing with sexual violence and stalking are offered here.

 

 

Title IX

(Drawn from U.S. Department of Education, Office for Civil Rights, 2020, 2020a)

 

Under Title IX of the Education Amendments of 1972 and its implementing regulations, a college that receives federal funds must ensure that students do not suffer a deprivation of their access to educational opportunities based on sex. Title IX addresses sexual harassment as a form of sex discrimination, covering several types of sex-based misconduct. As with the Clery Act, the U.S. DOE enforces Title IX. 

 

The most updated Title IX regulations were published in May of 2020—the DOE required colleges to implement the regulations by August 14, 2020.

 

With the VAWA 2013 changes to the Clery Act, colleges are subject to the Clery Act and Title IX when addressing complaints of dating violence, domestic violence, sexual assault or stalking.

 

See the official version of the 2020 regulations or the unofficial version (both are lengthly and detailed, but the unofficial version is a little easier to read). The DOE also offers Summary of Major Provisions ofthe Department of Education's Title IX Final Rule. See Center for Changing Our Campus Culture, Title IX, for additional related links and updates. With the Clery Act, CSAs only collect facts. Students have the option of reporting crimes to a CSA without being identified. However, many CSA’s are also responsible employees and, as such, are required to report the details of sexual misconduct, including victim identifying information, to the Title IX coordinator.

 

While the 2020 Title IX regulations do not change the Clery Act, there is significant overlap between the new Title IX requirements and the Clery Act in relation to post-secondary institutional response to incidents of dating violence, domestic violence, sexual assault and stalking (Clery Center, 2020). Go to the Clery Center’s Overview of Compliance for Title IX for an overview of the intersection between these two federal regulations, focusing on: (1) reporting responsibilities, (2) providing support for reporting parties/victims and (3) disciplinary/grievance procedures. This webpage provides links to additional related resources, including the free Digging Deep into the Clery Act and Title IX Intersections video training series from the Clery Center and the Victims Rights Law Center. Also see the free webinars, Keeping Focus: Reviewing Clery Act Requirements in Light of New Title IX Regulations (Part I and Part II Q&A), conducted by the Clery Center and Joseph Storch of SUNY and the Student Conduct Institute.

 

Changes in Title IX Mandatory Reporting Requirements

It was mentioned earlier that the 2020 Title IX regulations shifted away from colleges having to use a responsible employee model for mandatory reporting of sexual harassment. The new regulations allow colleges to choose whether to have mandatory reporting for all employees or to designate some employees to be confidential resources for students to discuss sexual harassment without automatically triggering a report to the Title IX office.

 

With the Clery Act, CSAs have the option of reporting crimes to college without providing victim identifying information, if a student makes that request. It is particularly important that each college’s Title IX coordinator makes clear to the campus community who at the school is required to report Title IX sexual harassment they observe or hear about, what they are required to report (including if victim identifying information is required) and to whom to report. There may be some overlap in who the college identifies as a CSA and who is required by the school to report Title IX sexual harassment—those individuals with overlapping responsibilities need to know specifically what they must report. Students need to know if there are campus employees who are required to report sexual harassment they heard about and if their report would include student identifying information, so they know who they can discuss victimization confidentially versus who would have to make a mandatory report that includes their identifying information.

 

 

Family Educational Rights and Privacy Act (FERPA)

The 1974 Family Educational Rights and Privacy Act (FERPA) applies to all campuses that receive funds under an applicable program of the DOE. Codified at 20 USC §1232g, FERPA protects the privacy of student education records and gives parents certain rights with respect to their children’s education records until the rights transfer to students when they reach the age of 18 or attend a school beyond the high school level. Generally, schools must have written permission from the parent or eligible student in order to release any information from a student’s education record, except under the certain conditions outlined in 34 CFR §99.31.

 

• Overlap with Clery provisions: FERPA specifically provides that information may be disclosed if it “is necessary to protect the health or safety” of one or more individuals. FERPA also does not apply to law enforcement records; therefore, unless state law prohibits disclosure, institutions are free to use these records when issuing warnings (Clery Center, 2018). However, if those same law enforcement records were shared with school officials for conduct resolution proceedings, this new documentation would become protected as part of the student’s educational record (Clery Center, 2018).
• FERPA and the role of court decisions: In criminal and civil cases, education officials may find the decision to withhold or release student records is better left to the presiding court. While courts typically maintain that education records should remain private, they have the authority to decide when it is appropriate to release student records, and to what extent. In some cases, a court will issue the decision to release documents related to the nature of allegations against an institution, or the institution’s response to those allegations. But in these cases, student transcripts and statements may be withheld as protected documents under FERPA. Even when student documents are released to the public, they may require the redaction of personally identifiable information. (Clery Center, 2018)

 

 

Federal Guidelines to Advise Campuses about Sex Offenders

(Drawn from the U.S. Department of Education, 2016)

 

Upon release from prison, individuals convicted of sex crimes may be required to register with law enforcement agencies (under Megan’s Law). If registered sex offenders are enrolled or employed at a postsecondary institution, they must also provide this information to the state. The state must then provide this information to campus law enforcement departments or other law enforcement authorities in the jurisdiction where the institution is located. Colleges are not required to request this information from the state. This information is strictly for use by the campus law enforcement agencies and is not disseminated to the campus or community. Colleges are only required to inform their campus community how information about registered sex offenders on campus can be obtained.

 

 

Drug-Free Schools and Communities Act (DFSCA)

(Clery Center, 2018)

The Drug-Free Schools and Communities Act (DFSCA) requires colleges that receive federal funding to establish and report on drug and alcohol abuse prevention programs for students and employees.

Specifically, they must implement initiatives “to prevent the unlawful possession, use, or distribution of illicit drugs and alcohol by students and employees” on the college premises and as part of any of its off-campus activities. DFSCA compliance thus requires institutions to:

 

• Annually provide written notification to employees and students of standards of conduct; a description of appropriate sanctions for violation of federal, state, and local law and campus policy; a description of health risks associated with alcohol and drug use; and a description of available treatment programs.
• Develop a sound method for distributing annual notification information to students and staff each year.
• Prepare a biennial report on the effectiveness of its alcohol and drug programs and the consistency of sanction enforcement.

Substance abuse prevention programs must also meet certain minimum standards. Additionally, records related to DFSCA must be maintained for at least 3 years.

 

 

For More Information from WV FRIS

• See the section of this website on campus sexual violence and stalking.
• See the resources section of the website for Toolkits for Addressing Interpersonal Violence on College Campuses. There are three toolkits—one for campus prevention educators, one for campus law enforcement and security departments and one for campus student conduct professionals.
• Under the section on online trainings, see the Resident Assistant training module on the issues of stalking and sexual misconduct for college resident assistants and advisors.
• Under the section on collaborations, see the description of the WV Intercollegiate Council Against Sexual Violence.

 

 

 

References

Center for Public Integrity. (2010). Reporter's toolkit: Investigating sexual assault cases on your campus. Washington, DC: Author.

 

Clery Center. (2018). Compliance overview of Title IX, DFSCA, and FERPA [Web pages]. Wayne, PA: Author.

 

Clery Center. (2017a). Annual security report. [Web page] Wayne, PA: Author.

 

Clery Center. (2017b). Summary of the Jeanne Clery act. [Web page] Wayne, PA: Author.

 

Clery Center. (2017c). What happened to Jeanne Clery was a tragedy. [Web page] Wayne, PA: Author.

 

Clery Center. (2016). Understanding Clery statistics. Wayne, PA: Author.

 

Office for Civil Rights. (2017). Q & A on campus sexual misconduct. Washington, DC: U.S. Department of Education.

 

Office of Postsecondary Education. (2016). The handbook for campus safety and security reporting, 2016 Edition. Washington, DC: U.S. Department of Education.

 

U.S. Department of Education. (2016). Federal guidelines to advise campuses about sex offenders. Washington, DC: Author.