Managing compliance with Title IX and the Jean Clery Act has been on many an administrator’s mind of late, and rightly so. In recent months, the U.S. Department of Education’s Office of Civil Rights (OCR) has through administrative action and announcement issued volumes of new guidance that to many in the regulated community appear to incorporate extensive new requirements.
Meanwhile, subsequent to last year’s signing of the Violence Against Women Reauthorization Act of 2013 (VAWA), the Department’s Clery Act Compliance Division (Clery Division) has been leading a negotiated rulemaking for the purpose of promulgating a host of new regulations designed to carry out VAWA, and to enhance and clarify the existing law. The proposed regulations were released in mid-June, with the final version anticipated in September.
Accompanying this onslaught of guidance and regulation has been increased attention from regulators, policymakers, and even the mainstream media. The Department has significantly increased its review of Clery Act compliance during program reviews and other onsite audits, and demonstrated a ready willingness to levy significant fines. The activity of the Office of Civil Rights, in turn, has been so significant as to push campus management of sexual violence to the top of the news cycle, and even onto the cover of Time Magazine. Any postsecondary administrator feeling a bit overwhelmed or anxious is in good company.
Adding to existing frustration, and in some cases confusion, is the fact that these two laws are overseen and enforced by separate divisions of the Department, despite the fact that the concentric circles representing each body of law now overlap more than a little. The Department, rather than offer integrated guidance, has elected to approach each law separately, noting in recent guidance documents that while the two laws “overlap in some areas relating to requirements for an institution’s response to reported incidents of sexual violence, the two statutes and their implementing regulations and interpretations are separate and distinct.”
From a regulatory standpoint, this stance is defensible. An agency department tasked with enforcing a particular law is acting appropriately when it respects the limitations of its authority and expertise. Nonetheless, for a postsecondary administrator tasked with absorbing and integrating these laws into a unified set of campus policies and procedures — amidst intense political and media scrutiny, no less — it is the kind of statement that leads to nervous tics and early retirement.
Because the breadth and detail of the requirements flowing from Title IX and the Clery Act is so significant, we cannot offer a comprehensive analysis in the context of this site. At least not all at once. But we believe we can offer some digestible bits of guidance and advice that will assist institutions to bring the new requirements into focus, put them into order, and ultimately steer their campus into compliance. Accordingly, over the coming weeks and months, REGucation will examine certain of the new requirements flowing from these two laws, with an aim toward offering practical advice for compliance and management.
Tips for gathering Clery statistics
With the remainder of this post, we thought we would focus on the process for gathering Clery statistics for this year’s Annual Security Report, and in particular, to the request letter your institution sends to law enforcement agencies, which should be sent out soon, if it has not gone already. In March 2013, VAWA amended the Clery Act to require institutions, among other things, to gather and report statistics for incidents of domestic violence, dating violence, and stalking. The act required that institutions include this new statistical data in the Report that they issue on or before October 1, 2014.
In mid-July, the U.S. Department of Education issued a Dear Colleague letter in which it indicated that institutions will not be required to report the new statistics to the Department during this year’s web-based data collection. Institutions will, however, be expected to make a good-faith effort to gather and publish the new statistics in this year’s Annual Security Report, and will be required to report the new statistics for calendar years 2013 and 2014 in next year’s Report.
The starting point for making sure you get the right data is the request letter your institution sends to law enforcement agencies or any other external entity from which you gather information regarding reported crimes. We recommend that you use as your basic template the sample letter included in Appendix B to the Department’s “Handbook for Campus Safety and Security Reporting.” But take note, the handbook was published in 2011, before VAWA become law, so you should consider the following possible changes:
- First, update the letter to ensure that you request statistics for incidents of domestic violence, dating violence, and stalking for calendar year 2013. You do not need to add “sexual assault” to your request letter. While the term “sexual assault” is introduced in VAWA, it does not come into play in the 2013 data collection. The “sex offenses” data you already gather is sufficient. Because we love graphics around here (worth a thousand words after all), we’ve put together the following chart, which may help to keep things straight: "Clery Reportable Crimes Chart."
- Second, revise and expand the letter to reflect the new categories of bias for hate crimes. Specifically, VAWA added “national origin” and “gender identity” to the categories previously listed in the law. Thus, the new, complete lineup includes the following eight categories of bias: race, gender, religion, national origin, sexual orientation, gender identity, ethnicity, or disability.
- Third, specify the applicable definitions of domestic violence, dating violence, and stalking. Historically, the crime statistics gathered in connection with the Clery Act all have been compiled in accordance with the definitions used in the Federal Bureau of Investigation’s uniform crime reporting system. However, the definitions of domestic violence, dating violence, and stalking are drawn from section 40002(a) of VAWA. Conveniently, these definitions are set out in the Dear Colleague letter referenced above.
Finally, make sure that you keep a copy of any letter you send to local law enforcement, or any other party, requesting statistics, and be sure to pair the request with the reply in your records. As anyone who has administered this process knows, the data received back from law enforcement can vary greatly in form and quality. We have seen responses as brief as an email simply stating “nothing to report.” Should you ever be subject to a Department of Education Program Review, or any other form of Clery audit, you will greatly enhance your ability to demonstrate compliance if you can show that you requested the correct data. Indeed, it may be the only way you can provide meaningful context for the response you received in reply.
Aaron Lacey is a partner in Thompson Coburn’s Higher Education practice, and editorial director of REGucation. You can find Aaron on Twitter (@HigherEdCounsel) and LinkedIn, and reach him at (314) 552-6405 or firstname.lastname@example.org.