The Clery Act and Title IX Compliance

1. Session 38 The Clery Act and Title IX Compliance Ashley Higgins and Jim Moore | December 2015 U.S. Department of Education 2015 FSA Training Conference for Financial Aid Professionals

2. Disclaimer “This presentation provides general information about the Clery Act. It does not represent a complete recitation of the applicable law or ED/FSA policies in this area and is for discussion purposes only. This presentation must not be used for any other purpose. Actual compliance determinations must be made after a careful analysis of specific facts on a case-by-case basis. Comments made during this presentation are for instructional and illustrative purposes only and are not intended for attribution or publication.”

3. Agenda Clery Act and Title IX Compliance: Practical Advice for Higher Education Professionals • Background/History of the Clery Act • Monitoring and Enforcement • Clery Act Basics • Violence Against Women Reauthorization Act of 2013 (VAWA) “ (At least) 10 Things That You Need To Know About VAWA” “A (Quick) Note on the “Intersection of Clery/VAWA, Title IX, and FERPA” • Clery Team Collaboration • Program Review • Best Practices • Questions

4. Background/History of the Clery Act Campus safety and crime prevention requirements in the HEA starts with the Crime Awareness and Campus Security Act of 1990 • 1992 - Expanded sexual assault policy requirements • 1998 - Expanded reporting requirements and renamed the law in memory of Jeanne Clery (Crime Log; Expanded geographical scope) • 2000 - Victims of Trafficking Act (Sex offender registry) • 2008 – HEOA (Emergency notification and response; Fire safety) • 2013 - Section 304 of VAWA amends the Clery Act • What’s on the horizon… College Accountability and Safety Act (CASA)? Hold Accountable and Lend Transparency Act (HALT)?

5. Monitoring and Enforcement Federal Student Aid monitors & enforces the Clery Act: • Program Reviews - Three Types • Complaint Assessments • Media Assessments Possible consequences of review findings: • Fines - up to $35,000 per offense (CASA Proposal) • Limitation, suspension, or termination of the eligibility for student financial aid programs; denial of recertification or revocation of a provisional Program Participation Agreement Special Note: The Secretary “shall impose” a civil penalty for any Clery Act violation that rises to the level of a “significant misrepresentation.”

6. Enforcement Tools ED/FSA Enforcement Options: • Fines (up to $35,000* per violation – primary option) • Provisional Certification - Growth Restrictions • Heightened Cash Monitoring • Limitation, Suspension, and Termination External Factors/Shifting Incentives: • Student Activism + Media Attention = Increased Awareness • Reputational Harm (“Public Shaming”) • Legal Exposure • Financial/Existential Risk

7. Do It For Jeanne…Your Students…Your Colleagues…Your School

8. Clery Basics – Getting It Right! Theme #1: Moving From Compliance To Excellence! Theme #2: Focus on Campus Safety & Crime Prevention Theme #3: Protect the “Brand” and Risk Management

9. Clery Basics The Clery Act campus safety and crime prevention provisions require all* schools to: • Classify crime reports and compile and disclose crime statistics • Produce and actively distribute an annual security report (ASR) that contains all required statistical and policy disclosures (50+) • Submit crime statistics to ED • Issue timely warnings and emergency notifications

10. Clery Basics - ASR Production and Distribution Must distribute an accurate and complete report to all enrolled students and current employees • Directly by mail, hand delivery, or e-mail or • By posting on an Internet or intranet site that is reasonably accessible to current students and employees If you post the annual security report online, you must distribute a notice by October 1st with statement of report’s availability, exact URL, a description of contents, and statement that paper copy is available upon request.

11. Clery Basics - Production and Distribution Must actively notify prospective students and employees about the availability of the ASR. The notice must include a description of the report’s contents and explain how to obtain a paper copy • Must provide a copy of the ASR upon request • If posted on an internet site, notice must also include exact URL where ASR is posted For prospective students and employees, information may not merely be posted on an intranet site.

12. Clery Basics - Reportable Offenses

13. Clery Basics - Hate Crimes Classify crime reports and disclose crime statistics. • Hate crimes are motivated by the offender’s category of bias • **Added to the Clery Act by the Matthew Shephard Act, 2009 • Arrests and referrals for disciplinary action are based on violations of weapons, drug, and liquor laws, not of institution policies • Race • Gender • Religion • Sexual orientation • Ethnicity/national origin • Disability • Perceived gender** • Gender identity**

14. Clery Basics - Crime Statistics Classify crime reports and disclose crime statistics • Schools disclose reported offenses, regardless of whether or not the alleged perpetrator is found guilty “Reported” - brought to the attention of a campus security authority or local law enforcement personnel. A report cannot be “unreported” but can be “unfounded” by law enforcement if certain conditions are met. • Count both attempted and completed crimes • Make a reasonable, good faith effort to obtain crime statistics from local law enforcement agencies • Hierarchy and exceptions (Criminal Homicide, Rape, & Arson) • Crimes may be reported anonymously per institutional policy – never include PII in the ASR and/or crime statistics

15. What does “Unfounded” mean? An institution may withhold, or subsequently remove, a reported incident from its crime statistics if, after a diligent inquiry, a sworn or commissioned law enforcement officer makes a formal determination that the available evidence shows that a particular crime report was in fact false or baseless.

16. Unfounded Crimes • Only a sworn law enforcement officer can unfound a crime • Crime reports can be “unfounded” only when the evidence establishes that the reported crime was not completed or attempted in any manner • A case cannot be “unfounded” because • Victim or witness refuses to cooperate • No investigation was conducted or the investigation was not completed • The investigation failed to prove that the crime occurred; this would be an inconclusive or unsubstantiated investigation • Prosecutor declined to pursue criminal charges against the alleged perpetrator(s)

17. Clery Basics - “Clery Geography” Defined • Campus I: any building or property owned or controlled by an institution within the same reasonably contiguous geographic area and is used by the institution in direct support of, or in a manner related to, its educational purposes, incl. Residence halls. • Campus II: any building or property that is within or reasonably contiguous to the area identified above that is owned by the institution but is controlled by another person, is frequently used by students, and supports institutional purposes (such as food or other retail vendor).

18. Clery Basics - “Clery Geography” Defined • Non-campus building or property: (1) Any building or property owned or controlled by a student organization that is officially recognized by the institution; or (2) any building or property (other than a separate campus) owned or controlled by an institution that is used in direct support of, or in relation to, the institution’s educational purposes, is frequently used by students, and is not within the same reasonably contiguous geographic area. • Public Property: All public property including thoroughfares, streets, sidewalks, and parking facilities, that is within the campus, or immediately adjacent to or accessible from the campus.

19. Clery Basics - Campus Security Authority • Members of a campus law enforcement or public safety entity • Any individual who has responsibility for campus safety but is not part of a campus law enforcement or public safety department or presence (hall monitors; parking attendants) • Any official of an institution who has significant responsibility for student and campus activities, but does not have significant counseling responsibilities • Actualprofessional & pastoral counselors are exempt Note: Special considerations for institutions specializing in counseling or affiliated with churches/religious orders.

20. Clery Basics - ED Annual Survey • Institutions report campus crime statistics for the three most recent calendar years • Must match the statistical disclosures that were published in the annual security report • Deadline for completing the web-based data collection is specified by the Secretary each year – typically mid-October • Collected data are posted on OPE’s Data Analysis Cutting Tool (linked to College Navigator) for public use

21. Warning: This is NOT an ASR!

22. Clery Basics - Safety Alerts Issue Timely Warnings and Emergency Notifications • Institutions must issue campus safety alerts to provide students and employees with timely information about ongoing threats due to crime or other dangerous conditions Two kinds of alerts: • Timely warnings are issued for Clery-reportable crimes that may pose a serious ongoing threat (Clery Geography) • Emergency notifications are issued upon the confirmation of a significant emergency or dangerous situation that may pose an immediate threat to health or safety (Campus Only)

23. Clery Basics - Safety Alerts Issue Timely Warnings & Emergency Notifications

24. Clery Basics - Special Considerations Additional requirements: • Institutions with a campus police or security presence** must additionally maintain a daily crime log • Institutions with on-campus student housing facilities must additionally: • Develop and implement missing student notification procedures that pertain to students residing in those facilities and include them in the ASR • Comply with fire safety requirements

25. Clery Basics - Daily Crime Log Daily Crime Log • Log is a daily record of criminal and alleged criminal incidents reported to the campus police or security personnel • All crimes on Clery geography or within patrol jurisdiction of the campus police/security department • Not just Clery Act crimes • Records nature, date the crime was reported, time, date, general location, and disposition (if known) of each crime

26. Clery Basics - Crime Log • Log must be available • Must be accessible on-site (written or electronic) • Available upon request for public inspection during business hours (most recent 60 days available immediately; older records available within two business days) • Must be available without payment or written request • May be combined with fire log • Log must be maintained • Must make additions or updates to an entry within two business days • Update disposition up to 60 days from when crime was entered in the log • Schools must archive log for seven years (record-retention requirement)

27. Clery Basics - Missing Student Notification • Include a statement in the ASR that explains the missing student notification procedures that apply when it is determined that a student residing in campus student housing has been missing for 24 hours • Students must be given the opportunity to register a confidential contact with the institution • Confidential information for this purpose must be kept separate from general emergency contact information • Only authorized officials may have access to the information • Such information may only be disclosed to law enforcement in furtherance of a missing person investigation

28. Clery Basics - Fire Safety Fire Safety Policies and Statistics 3 primary compliance areas: • Annual fire safety report • Statistics • Policies and Procedures • Submit fire statistics to ED • Fire log

29. Violence Against Women Reauthorization Act of 2013 • VAWA enacted March 7th, 2013; Final Rule issued on October 20, 2014 http://ifap.ed.gov/eannouncements/102014ViolenceAgainstWomenAct.html • Requires expanded reporting for incidents of sexual assault, dating violence, domestic violence, and stalking (including cyberstalking) • Requires that the ASR include additional information about policies, procedures, and training programs aimed at sexual assault prevention and response • Expands accommodations and protective measures requirements

30. Violence Against Women Reauthorization Act of 2013 New Programmatic and Training Requirements include: • Awareness Campaigns - Ongoing Requirement (Red Zones) • Primary Prevention • Risk Reduction • Bystander Intervention Per Master Calendar, final regulations went into effect July 1, 2015.Institutions were already obligated to make a good faith effort to comply with statutory requirements - diagnostic and corrective approach. Clarification regarding the intersection of Clery Act & Title IX: Strict compliance with Clery Act/VAWA will NEVER cause a direct violation of Title IX (or FERPA).

31. Violence Against Women Reauthorization Act of 2013 Key Provisions • Revises the definition of Rape • Adds Gender Identity and Perceived Gender to Hate Crimes provision • Requires Specialized Training for Disciplinary Hearing Officials • Reforms the disciplinary proceeding process • More information on how to file complaints • List possible sanctions • Describe the range of protective measures • Explicit right to timely notice of all meetings (including appeals) • Fair, prompt, and impartial process • Advisor of choice • Equal opportunities to be heard, present evidence, and have others present (Basic procedural rights to notice and to hearing) • Unconditional and simultaneous notice of outcomes reached and sanctions imposed

32. The 2015 Campus Safety and Security Survey • The Clery Act requires institutions to disclose and report crime statistics for the three most recent calendar years • To ease the burden on institutions and to help ensure accuracy, the Department did not collect data on incidents of dating violence, domestic violence, and stalking for the 2013 calendar year • However, institutions were expected to include 2013 statistics for these incidents in their 2014 ASRs • In addition, the final regulations required institutions to report the number of crimes determined to be “unfounded” in both the 2015 ASRs and the 2015 Campus Safety and Security Survey • Institutions were also required to report the contact information of their lead Title IX coordinator in the 2015 Campus Safety and Security Survey

33. VAWA Statistics Included in ASRs

34. VAWA Statistics Reported to the Department

35. Clery Act vs. Title IX • The Title IX regulations were not changed by the new regulations • VAWA amends only the Clery Act, which is a separate statute. The requirements of Title IX, including those set forth in the April 4, 2011, Dear Colleague Letter on sexual violence, remain unchanged, and schools must comply with them as before (Also see OCR Title IX FAQs)

36. Clery Act vs. Title IX • Schools’ obligations under the Clery Act are centered around collecting and reporting information with respect to campus crime statistics and campus security policies • Schools’ obligations under Title IX are centered around ensuring that students are not discriminated against on the basis of sex in the school’s education programs and activities • Sexual harassment, including sexual violence is a form of sex discrimination

37. What is Title IX? • Title IX prohibits sex-based discrimination in educational programs and activities receiving federal financial assistance • Title IX applies to all public and private educational institutions receiving federal financial assistance

38. Title IX and Sexual Violence • Once a school knows or reasonably should know of possible student-on-student sexual violence, it must: • Take immediate and appropriate action to investigate or otherwise determine what occurred • Use the preponderance-of-the-evidence standard of proof • If an investigation reveals that sexual violence that created a hostile environment occurred, a school must take prompt and effective steps reasonably calculated to end the sexual violence, eliminate any hostile environment, and prevent its recurrence

39. Title IX and Sexual Violence • Appoint (and empower) a Title IX Coordinator • Must use the preponderance-of-the-evidence standard of proof • Parties must have an equal opportunity to present relevant witnesses and other evidence • If a school permits one party to have a lawyer, it must do so equally for both parties • If a school provides an appeal process, it must do so for both parties • Both parties must be notified, in writing, about the outcome of the complaint and any appeal

40. Program Reviews - What to Expect Written Notification - Fieldwork - PRR – Response - FPRD “How do you know what you think you know?” Document! Document!! Document!!! • Document requests (not a negotiation) • Police/Public safety incident reports + arrest records • Student and employee conduct records…advocacy, athletics, Greeks, housing • Interviews • What about FERPA? • Opportunity to demonstrate administrative capability • Emphasis on full disclosure and timely production • Role of advisors, consultants, and attorneys • Separate from other reviews or investigations (ED OCR; Justice)

41. Best Practices • Appoint and empower a Clery Act/Part 86 Compliance Officer • Develop an understanding of “Clery Geography” • Identify and train “Campus Security Authorities” • Specifically inform students and employees about how to report crimes and emergencies • Check crime statistics for similar schools using the “Campus Safety and Security Data Analysis Cutting Tool” • Develop a Clery/VAWA and Title IX Implementation/Integration Plan

42. Clery Resources • Handbook for Campus Safety and Security Reporting (revised February 2011; New edition will include VAWA guidance) • http://www2.ed.gov/admins/lead/safety/handbook.pdf • Help Desk • campussafetyhelp@westat.com • 1-800-435-5985 • Notice of Proposed Rulemaking published 6/20/2014 • https://www.federalregister.gov/articles/2014/06/20/2014-14384/violence-against-women-act • DCL GEN-15-15: Implementation of the VAWA Final Regulations

43. QUESTIONS??? Jim Moore james.moore@ed.gov Ashley Higgins Ashley.Higgins@ed.gov Clery Team General Inquiries clery@ed.gov