All institutions receiving federal funds must comply with the procedural requirements outlined in the Title IX implementing regulations. Schools that violate the law can lose federal funding or be referred to the U.S. Department of Justice for further action.
Specifically, schools must:
(A) Disseminate a notice of nondiscrimination;
(B) Designate at least one employee to coordinate its efforts to comply with and carry out its responsibilities under Title IX; and
(C) Adopt and publish grievance procedures providing for prompt and equitable resolution of student and employee sex discrimination complaints.
These requirements apply to all forms of sexual harassment, including sexual violence, and are important for preventing and effectively responding to sex discrimination. Schools need to examine their current policies and procedures on sexual harassment and sexual violence to determine whether those policies comply with the requirements articulated in the Dear Colleague Letter released by the USDE Office for Civil Rights.
Find detailed guidance at http://www2.ed.gov/about/offices/list/ocr/letters/colleague-201104.pdf
To gain a complete understanding of the legal requirements and recommendations, please read the Q&A Guidance issued on April 29, 2014 in full at http://www2.ed.gov/about/offices/list/ocr/docs/qa-201404-title-ix.pdf
The Clery Act and Title IX
Institutions of higher education that participate in the federal student financial aid programs are subject to the requirements of the Clery Act as well as Title IX. The Clery Act requires institutions of higher education to provide current and prospective students and employees, the public, and the Department with crime statistics and information about campus crime prevention programs and policies. The Clery Act requirements apply to many crimes other than those addressed by Title IX. For those areas in which the Clery Act and Title IX both apply, the institution must comply with both laws. For additional information about the Clery Act and its regulations, please see http://www2.ed.gov/admins/lead/safety/campus.html
Violence Against Women Reauthorization Act of 2013
The Violence Against Women Reauthorization Act (VAWA) has no effect on a school’s obligations under Title IX.
On March 7, 2013, President Obama signed a bill that strengthened and reauthorized the Violence Against Women Act. Included in the bill were amendments to the Clery Act that afforded additional rights to campus victims of sexual violence, dating violence, domestic violence, and stalking. Every post-secondary institution participating in Title IV financial aid will be required to: compile statistics of incidents of sexual assault, domestic violence, dating violence, and stalking that occur within Clery geography and are reported to campus security authorities include within its Annual Security Report a statement of policy regarding:
Ø its programs to prevent domestic violence, dating violence, sexual assault, and stalking
Ø the procedures that will be followed once an incident of these crimes has been reported, including a statement of the standard of evidence that will be used during any institutional conduct proceeding arising from the report
Ø educational programs to promote the awareness of rape, acquaintance rape, domestic violence, dating violence, sexual assault, and stalking, which shall include primary prevention and awareness programs for incoming students and new employees, as well as ongoing prevention and awareness programs for students and faculty, and includes:
§ a statement that the institution prohibits these offenses
§ the definition of domestic violence, dating violence, sexual assault, and stalking in its jurisdiction
§ the definition of consent in reference to sexual activity
§ safe and positive options for bystander intervention
§ information on risk reduction to recognize warning signs of abusive behavior
Ø possible sanctions on protective measures the institution may impose following a final determination of an institutional disciplinary procedure regarding rape, acquaintance rape, domestic violence, dating violence, sexual assault or stalking
Ø procedures victims should follow if a sex offense, domestic violence, dating violence, sexual assault, or stalking has occurred, including information in writing about
§ importance of preserving evidence
§ to whom the alleged offense should be reported
§ options regarding law enforcement and campus authorities, including notification of the victim’s option to notify law enforcement (on-campus and local police), be assisted by campus authorities in notifying law enforcement if the victim so chooses, the option to decline to notify such authorities, and, where applicable, the rights of victims and the institution’s responsibilities regarding orders of protection, no contact orders, restraining orders, or similar lawful orders issued by a criminal, civil, or tribal court
Ø provide a prompt, fair, and impartial investigation and resolution be conducted by officials who receive annual training on issues related to domestic violence, dating violence, sexual assault, and stalking, and how to conduct an investigation and hearing process that protects the safety of victims and promotes accountability
Ø the accuser and the accused are entitled to the same opportunity to have others present during an institutional disciplinary proceeding, including the opportunity to be accompanied to any related meeting or proceeding by an advisor of their choice
Ø both the accuser and the accused shall be simultaneously informed, in writing, of:
§ the outcome of the institutional disciplinary proceeding
§ the institution’s procedures for the accused and the victim to appeal the results
§ any change in the results that occurs prior to the time the results become final
§ when the results become final
Ø procedures for institutional disciplinary action in cases of alleged domestic violence, dating violence, sexual assault and stalking, which shall include statements that proceedings shall
Ø information about how the institution will protect the confidentiality of victims
Ø written notification of students about existing counseling, health, mental health, victim advocacy, legal assistance, and other services available for victims on-campus and in the community
Ø written notification of victims about options for, and available assistance in, changing academic, living, transportation, and working situations, if requested by the victim and such accommodations are reasonably available, regardless of whether the victim chooses to report the crime to campus police or local law enforcement
Ø a student or employee who reports to the institution that they have been a victim of one of the aforementioned crimes shall be provided with a written explanation of the student or employee’s rights and options
Specific guidelines as to how this will impact institutions will be released by the Department of Education after the negotiated rulemaking process. For additional information about the Department’s negotiated rulemaking related to the Violence Against Women Reauthorization Act please see http://www2.ed.gov/policy/highered/reg/hearulemaking/2012/vawa.html
Actual Program Review Finding – Crime Awareness Requirement Not Met
Please see an example of an actual program review finding from USDE on this topic. It is critical that you take the time to review your policies and procedures in this area and make certain you are compliant with all of these requirements.
Citation: The Jeanne Clery Disclosure of Campus Security Policy and Campus Crime Statistics Act (the Clery Act) and the Department’s regulations require that all institutions that receive Title IV, HEA funds must publish and distribute a materially-complete annual security report (ASR) that describes its policies, procedures, and programs related to campus crime and security. Institutions also must publish statistics of certain incidents of crime that are reported to its police or security department and/or to any official that meets the definition of a campus security authority. The required policy disclosures include but are not limited to the following:
A statement of policy regarding the institution’s campus sexual assault programs to prevent sex offenses, and procedures to follow when a sex offense occurs. The statement must include: a description of educational programs to promote the awareness of rape, acquaintance rape, and other forcible and non-forcible sex offenses; and sanctions the institution may impose following a final determination of an institutional disciplinary proceeding regarding rape, acquaintance rape, or other forcible or non-forcible sex offenses. 34 C.F.R. §§ 668.46(b)(2)(ii); 668.46(b)( 1 I )(vi)(A)(B)
Noncompliance: The school failed to publish and distribute an accurate and complete annual security report. Specifically, the report did not include the following required policy statements:
(1) A description of educational programs to promote the awareness of rape, acquaintance rape, and other forcible and non-forcible sex offenses;
(2) Sanctions the institution may impose following a final determination of an institutional disciplinary proceeding regarding rape, acquaintance rape, or other forcible or non-forcible sex offenses.