Risk & Resilience:Demystifying Title IX

and the Clery ActPresented by:

Catherine Spear, Assistant Vice President for Equal Opportunity Programs

Gabe Gates, Assistant Vice President for Clery Compliance

Title IX VAWAClery

Title IX of the Education Amendments of 1972

The Violence Against Women Reauthorization

Act of 2013

The Jeanne Clery Act (1990)

• Prohibits sex discrimination in educational institutions that receive federal funds

• Amends Clery to expand sexual assault requirements and include dating violence, domestic violence, and stalking; applies to all students and employees

• Requires reporting of crimes, timely warnings, education/prevention programs, and policies and procedures for sexual assault

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INCIDENT

UNIVERSITY REPORT

Faculty

Athletics Residence Staff

Student Affairs

HR Professional University Police

Advisor

Administrator

Central process to uniformly vet all complaints of sexual and gender-based harassment and violence

University’s Response Policies/Procedures Informed by:

University CounselCriminal Law

(Loc. Law Enforcement)

Title IX(OCR)

Clery Act(DOE)

Negligence(Civil Counsel)

FERPA(DOE)

HIPAA(HHS/CMS/OCR)

State Laws(AG)

VAWA(DOE)

NCAA Child ProtectiveServices

(CPS)University Policy(Internal)

Other

CRIMINAL DEFENSE LAW ENFORCEMENT CIVIL/REGULATORY ACTIONS

MEDIA INQUIRIES

911 Call

Arrest on scene

Detective SVU

Interview victim

Search warrant

Investigation

Physical evidence

Photographs Other interviews

Warrant

Arrest

Preliminary Arraignment

– set bail

Formal Arraignment

Timetable set

Preliminary hearing –

witness calledPre-trial

conference

Motions Offer/plea

TrialJury

(weeks)

Bench (days)

Pre-sentence investigation

Appeal Sentencing

Interview witnesses

Subpoena witnesses

Advise client not to participate in

disciplinary proceeding

Request deferral of disciplinary proceeding

Victim Offender

Claims

Civil discovery process

Depositions/ Interrogatories

Document requests / Interviews

Request records

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?

?

?

?

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Regulatory Investigation

?

Individual and Community

Needs

FERPA State Law

Guid-ance

Clery VAWA

Title IX

Legal Framework Needs of Those We Serve

Understanding Title IX

“No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance.”

20 USCA Sec. 1681

The Law:

Understanding Title IX

Who Must Follow:

• Protects students, employees, and third parties from sexual and gender-based harassment and violence by any school employee, another student, or a non-employee third party.

Who it Protects:

• All recipients of federal financial assistance

• A harassed student or employee• The student’s parent or guardian• A third party• Anyone who requests action on the student or

employee’s behalf

Who can file:

Understanding Title IX

• Requires grievance procedures for “prompt and equitable” resolution of student and employee complaints;

• A school violates Title IX if it “has notice” of a sexually hostile environment and fails to take immediate and effective corrective action. A school has notice if a responsible employee knew or, in the exercise of reasonable care, should have known about the harassment.

• Once a school “knew or should have known,” the school must: • Eliminate the harassment,• Prevent its recurrence, and• Address its effects

What it Requires:

Examples of Conduct Covered Under Title IX

• Sexual discrimination and harassment– Verbal– Physical– Electronic

• Sexual violence– Rape– Sexual assault– Exploitation

• Stalking– Cyberstalking

• Interpersonal violence– Intimate partner – Domestic– Dating– Relationship

• Retaliation• Gender-based

discrimination and harassment

• Bullying/hazing

Title IX and Law Enforcement: Two Distinct Systems

Source: OCR Dear Colleague Letter, April 4, 2011, pp. 4, 10

“A law enforcement investigation does not relieve the school of its independent Title IX obligation to investigate the conduct” and “resolve complaints promptly and equitably.”

“Police investigations may be useful for fact-gathering, but because the standards for criminal investigations are different, police investigations or reports are not determinative of whether sexual harassment or violence violates Title IX.”

“Conduct may constitute unlawful sexual harassment under Title IX even if the police do not have sufficient evidence of a criminal violation.”

VAWA and Criminal Process

Options regarding law enforcement and campus authorities, including notification of the victim's options:

– Notify proper law enforcement authorities, including on-campus and local police

– Be assisted by campus authorities in notifying law enforcement authorities if the victim so chooses

– Decline to notify the authorities”

2013 Reauthorization of the Violence Against Women Act, March 2013

“Policies shall address procedures victims should follow if a sex offense, domestic violence, dating violence, sexual assault, or stalking has occurred, including information in writing about:

Title IX’s Top Ten1. Policies – solid foundation2. Procedures – consistent implementation3. Training – staff, faculty, students4. Prevention Programs5. Effective Communication6. Trauma-Informed Forensic Investigations7. Adequate Staffing8. Confidential Resources9. Pay Attention – Trends10. The long view…

Infographic: What Students Need to Know

University Process: At A Glance

Clery Act Background

“Knowledge is Power”Sir Francis Bacon

The Jeanne Clery Act is named in memory of 19-year-old Lehigh University freshman Jeanne Clery who was brutally raped and murdered while asleep in her residence hall room in 1986. Shortly after Jeanne’s murder, her parents discovered that in the three years prior to her murder, 38 violent crimes had occurred on Lehigh’s campus.

The Clery Act, codified at 20 USC 1092 (f) as a part of the Higher Education Act of 1965, requires all institutions to disclose certain information about campus crime and security policies.

Legislative History

◦ Originally signed into law by President Bush in 1990 as the Student Right to Know and Campus Security Act.

◦ Amended in 1992, 1998, 2000, 2008, and 2013.

Department of Education’s Authority

◦ The Department may impose a civil monetary penalty of up to $35,000 per violation.

◦ ED may also place restrictions and limitations on the institution’s ability to participate in federal funding programs, up to complete suspension.

Clery Act Overview

Collect, Classify, and Count

Crime

Issue Campus Alerts

Including:Timely Warnings

andEmergency Notifications

Publish an Annual Security

Report

Every Institution Must

Clery Act Requirements

Disclose Missing Student Protocols

Maintain a Daily Crime Log

Maintain a Daily Fire Log and

Publish an Annual Fire Report

Institutions with Campus Police and/or Student Housing Must

Clery Act Requirements, continued

Clery also speaks to sexual offenses

• Educational programs to promote awareness

• Procedures students should follow if a sex offense occurs, including:

– Reporting procedures– The importance of preserving

evidence

• Information on law enforcement reporting options and how the University can assist

• Notifying students of existing resources and services

• Duty to warn/timely warnings (not precluded by FERPA)

• Notifying students of university accommodations after an alleged sex offense

• Develop procedures

• Same opportunities for accuser and accused during a disciplinary hearing

• Notify of outcomes

• Develop sanctions

The Clery Act requires the gathering and disclosure of campus crime statistics, and mandates the collection of information regarding incidents from non-law enforcement “campus security authorities.”

“Campus security authority” is a Clery-specific term that encompasses four groups of individuals and organizations associated with an institution:

1) University Police2) Non-police people or offices responsible for campus security3) Officials with significant responsibility for student and campus activities

Examples: An Administrator of students Athletic Directors

Athletic Coaches Faculty Advisors to student organizations Resident Assistants/Advisors Coordinators of Greek Affairs

4) Any individual or organization specified in an institution's statement of campus security policy as an individual or organization to which students and employees should report criminal offenses

Campus Security Authorities

Reportable Crimes: Homicide Aggravated assault Sex offense, ◦ Rape, Fondling, Statutory Rape, &

Incest Burglary Robbery Motor vehicle theft Arson Hate Crime Drug/Alcohol/Weapon Law Violations Domestic Violence Dating Violence Stalking

Reportable Locations:

1. On campus

2. Off-campus buildings, owned, leased, or controlled

3. Public property within, or immediately adjacent to and accessible from the campus

Clery Crimes and Locations

Gabe GatesUniversity of Virginia

Assistant Vice President for Clery Compliance434-297-6462

grg5b@virginia.edu

Catherine SpearUniversity of Virginia

Assistant Vice President for Equal Opportunity Programs434-924-7179

ccs9a@virginia.edu

Contact Information