By The Book - August 2013: Clery Act Update and the Campus SaVE Act

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By the Book

The Jeanne Clery Disclosure of Campus Security Policy and Campus Crime Statistics Act (commonly referred to as the “Clery Act”), 20 U.S.C. § 1092(f), was named after a 19-year old freshman at Lehigh University who was raped and murdered in her campus dorm. The Clery Act requires colleges and universities receiving federal aid to: keep and disclose crime information from, on, or near campus (within the Clery geography); provide an Annual Security Report (“ASR”) by October 1st of each school year; maintain a crime log and crime statistics; have a policy to timely disclose emergencies or threats to the campus community; as well as have policies to handle reports of missing students.

On March 7, 2013, President Barack Obama signed into law the Violence Against Women Reauthorization Act (“VAWA”), Pub. L. No. 113-4, 127 Stat. 54 (2013). Embodied in the VAWA is the Campus Sexual Violence Elimination Act (“Campus SaVE Act”), Pub. L. No. 113-4, § 304, 127 Stat. 89 (2013), which expands the Clery Act and other regulations. The Campus SaVE Act expands the Clery Act’s coverage rights to include victims of domestic violence, dating violence and stalking. The Campus SaVE Act updates prevention guidelines and victim rights, including confidentiality for victims. The Campus SaVE Act also provides new prevention and awareness programs that must be supplied to new students and new employees. Some of the amendments include:

  • New ASR Statistics: Institutions must collect and publish ASR statistics of domestic violence, dating violence and stalking incidents that are reported to campus security or local authorities.
  • Policy Inclusion within the ASR: Institutional policies regarding domestic violence, dating violence, sexual assault and stalking prevention, and policies that an institution will follow upon a report of domestic violence, dating violence, sexual assault or stalking should be included in the ASR.
  • New Categories of “Hate Crimes:” Crimes motivated by prejudice against a victim’s national origin or gender identity are now reportable “hate crimes.”
  • Victim Confidentiality: Institutions must withhold a victim’s name when making timely reports to the campus community of crimes considered a threat to other students and employees. Institutions must also develop a policy for protecting a victim’s confidentiality in disclosure of public records.
  • Procedures: Institutions must develop and promulgate procedures for reporting, investigating and adjudicating reports of domestic violence, dating violence, stalking and sexual violence incidents, including policies and procedures to address and prevent campus sexual violence, such as personnel training.
  • Student Disciplinary Proceedings and Investigation Standards: Institutions must adopt procedures for investigating and conducting student discipline proceedings in domestic violence, dating violence, sexual assault and stalking cases. These procedures must include:
    • -   That the investigation and resolution will be prompt, fair and impartial;
    • -   A “statement of the standard of evidence” used during the proceeding;
    • -   The annual training of officials conducting the proceedings to ensure the protection of the victim’s safety and the promotion of accountability;
    • -   The identification of sanctions or protective measures the institution will impose after final determination that rape, acquaintance rape, domestic violence, dating violence, sexual assault or stalking has occurred;
    • -   That the accuser and the accused are afforded equal opportunity to present during the disciplinary proceeding. Both parties must have the ability to be accompanied at any meeting or proceeding by an advisor of their choice;
    • -   The accuser and the accused must be simultaneously notified in writing of the outcome of the proceeding, appeal procedures, any change to the result before it becomes final, when the result will become final, and that disclosure of the outcome are unconditional; and
    • -   Institutional policies must address the protection of a victim’s confidentiality, including record-keeping that excludes a victim’s personally-identifiable information.
  • Victim Notification of Rights: Institutions must have a policy of notifying victims (students or employees) of their rights and options in writing, including:
    • -   The importance of preserving evidence;
    • -   To whom an offense may be reported;
    • -   The option to, or not to, seek campus security or police assistance;
    • -   Possible sanctions that may be imposed following an institutional disciplinary procedure;
    • -   The institution’s responsibilities regarding judicial no-contact, restraining and protective orders;
    • -   Existing counseling, health services, mental health services, victim advocacy, legal assistance and other victim services on-campus and in the community; and
    • -   Options for, and available assistance for, changing academic, living, transportation and work situations, if requested by the victim and such accommodations are reasonably available, regardless of whether the victim chooses to report the crime to campus security or local law enforcement.
  • Education and Awareness Programs: Institutions must offer new students and new employees programs that promote awareness and prevention of rape, acquaintance rape, domestic violence, dating violence, sexual assault and stalking. These programs must include:
    • -   A statement that the institution prohibits those offenses;
    • -   The definition of domestic violence, dating violence, sexual assault and stalking in the applicable jurisdiction;
    • -   The definition of consent for sexual offenses in the applicable jurisdiction;
    • -   “Safe and positive” options for intervention by bystanders an individual may take to “prevent harm or intervene” in situations;
    • -   Recognition of signs of abusive behavior and instruction on how to avoid potential attacks;
    • -   Information about the institution’s policies and procedures; and
    • -   Ongoing prevention and awareness (below).
  • Ongoing Awareness Campaigns: Institutions should continue to have prevention and awareness campaigns for students and faculty throughout the school year.
  •  Anti-Retaliation: “No officer, employee, or agent of an institution…shall retaliate, intimidate, threaten, coerce, or otherwise discriminate against any individual for exercising their rights or responsibilities under [the Clery Act].”

The new Clery Act amendments become effective in March 2014. The U.S. Department of Education has issued preliminary guidance on these amendments, requesting that institutions exercise their “best efforts” to include statistics for the new crime categories in 2013 in the ASR due in October 2014. U.S. Department of Education, Implementation of Change Made to the Clery Act by the Violence Against Women Reauthorization Act of 2013 (May 29, 2013).

There may be other changes to an institution’s responsibilities under the VAWA, Office For Civil Rights, “Dear Colleague” Letter- (Apr. 4, 2011), http://www2.ed.gov/about/offices/list/ocr/letters/colleague-201104.pdf, the Clery Act, Title IX of the Education Amendments of 1972, 20 U.S.C. §§ 1681-1688 (2012), Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e-17 (2012), New York employment laws, New York Human Rights Laws and other statutes and regulations, so it is important for each education institution to consult legal counsel to determine the effects and specific application to its institution.

Penalties for violations of the Clery Act include $27,500 per violation (which increases to $35,000 per violation occurring on or after October 2, 2012) and possible suspension or loss of federal financial aid, including grants, loans, and work-study programs.