A Decades-Old Law, Now More Important Than Ever

Campus safety and sexual assault prevention advocates are pushing U.S. Department of Education officials to put more focus on enforcement of the Clery Act.

June 25, 2021
 
Alex Wong/Getty Images
President Barack Obama signs into law the 2013 Violence Against Women Act, which introduced new campus safety requirements for colleges under the Clery Act.

When a recent graduate of a Virginia college formally reported last August that she was raped off campus, she was disappointed to learn her complaint was made two weeks too late.

New rules for how colleges handle sexual misconduct complaints had just taken effect and removed off-campus sexual misconduct reports -- as well as those not involving current students -- from the purview of Title IX, the federal law which prohibits sex discrimination at federally funded institutions. (Wednesday was the 49th anniversary of passage of the law.)​

The woman, who does not want to be identified, was raped in December 2019 and had graduated from the college more than a year earlier. She was working for the institution when she reported the assault, and her assailant was still a student there. But because she was raped in a private residence off campus, college officials told her the case fell outside of Title IX.

The U.S. Department of Education, under policies created by the Trump administration, had by that point begun to mandate that colleges dismiss Title IX complaints that “did not occur in the school’s education program or activity.”

In short, the graduate wasn’t protected by Title IX, her college told her in a "dismissal notice" closing her case. The letter noted that the dean of students’ office could opt to take action against her alleged assailant under the college’s general code of conduct, but it was not required to under current federal law.

The dismissal left the woman not only disappointed, but anxious and concerned for the safety of other students on campus. She had heard another woman was raped by her assailant. Would he commit another sexual assault if he remained on campus?

“I was worried that nothing would come of my case, which would then make him a harm or risk to others,” she said.

She believed there was no recourse left. But after a conversation with her attorney Laura Dunn, a nationally recognized Title IX expert and legal advocate for survivors of sexual assault, the recent graduate learned there was an alternate path to ensure her case was pursued by the college.

That path was the Clery Act, a 1990 law that requires institutions to respond promptly to and investigate reports of sexual assault, dating violence, domestic violence and stalking, including incidents off campus. Dunn informed officials at the Virginia college that they had a responsibility to do just that in her client’s case. The college subsequently reopened the investigation of the case.

The Clery Act has a similar purpose as Title IX now does -- to stem sexual violence on college campuses and protect students, commonly women, who are attacked. But campus safety experts and advocates for sexual assault survivors say the Clery Act doesn’t get the attention it deserves for mandating quick and fair responses by college officials to sexual violence. This is due in part to the heightened national focus on changes to Title IX in recent years, but also because the Clery Act lacks certain accountability measures. For example, students who believe their colleges are in violation of the law cannot sue the institutions under Clery.

The Virginia college investigated the woman’s case under Clery using the same process it uses for Title IX. Dunn said many institutions use the same investigative policies and procedures for reports of sexual misconduct, whether they fall under Title IX, the Clery Act or a general code of conduct, to determine disciplinary actions.

The Virginia college graduate’s assailant was expelled from the college in December 2020, she said. A criminal investigation of the incident is ongoing.

“It felt like that process had gone on for so long,” she said. “For it to finally be over was relieving.”

She believes she would not have gotten justice had her lawyer not advised her to assert her rights under the Clery Act. The woman had no prior knowledge of the law, or of the recent changes to Title IX that limited protections for nonstudents and those assaulted or harassed off campus or outside an official educational activity, she said.

“If I didn’t have Laura, I don’t think the hearing would have gone the way that it did,” she said. “I don’t think the case would have been handled the way it did. I don’t think I would have gotten through it without her support, but also her being there to push the school.”

Dunn said survivors should not have to spend money to retain a lawyer, or be lucky enough to have a legal nonprofit willing to support them free of charge, in order to get their complaints handled properly. Now she and other advocates are pushing the Biden administration to issue federal guidance about students’ rights under the Clery Act, alongside Title IX, as part of the processes colleges must use for investigating and adjudicating sexual misconduct cases.

Looking for Clery Clarity

As the U.S. Department of Education begins reversing Title IX regulations enacted by the Trump administration, some campus safety and sexual assault survivor advocates are proposing that department officials hone guidance about the Clery Act.

The protections and rights guaranteed to students who report sexual violence under the Clery law -- formally called the Jeanne Clery Disclosure of Campus Security Policy and Campus Crime Statistics Act -- are similar and often overlap with how colleges apply Title IX. Title IX prohibits gender-based discrimination, including sexual harassment and assault, that prevents students from equally accessing their education. Meanwhile, the Clery Act mandates that institutions publicly report and respond to crimes, including sexual assault, on or near their campuses.

The most recent federal regulations that enforce the Clery Act -- published in 2014 by the Department of Education under President Obama -- require colleges to conduct “a prompt, fair, and impartial disciplinary proceeding” in response to reports of sexual violence.

In many ways, the Clery Act should provide survivors of campus sexual assault with protections they and their advocates fear were stripped away by former secretary of education Betsy DeVos’s significant changes to Title IX regulations that took effect last year, said Daniel Carter, president of Safety Advisors for Educational Campuses LLC, or SAFE Campuses, a campus safety consulting firm.

Carter and Dunn have been promoting how college officials and civil rights attorneys should interpret and apply the Clery Act as a “stopgap measure” to protect students from gender-based violence, including on a webinar for the American Bar Association earlier this year.

Carter noted during the webinar that while the DeVos regulations require colleges to dismiss Title IX complaints of incidents that occurred outside of campus-affiliated activities, the Clery Act requires colleges to respond to reports of sexual violence whether they occurred on or off campus.

The DeVos regulations also expressly state that Title IX does not apply to incidents that occur outside the United States, prompting fears that students who are sexually assaulted during study abroad programs would not be covered by the law. The Clery Act has no such boundary, Carter said.

“While this did not get a lot of attention at the time that it was enacted, because this was basically what was already done under Title IX and most institutions had policies that did this, it is actually a requirement of the Clery Act and it has no geographic limitation,” Carter said during the webinar.

Additionally, the DeVos regulations limited Title IX coverage to individuals “participating in or attempting to participate in the education program or activity.” But the Clery Act has broader coverage and includes anyone who reports sexual violence to an institution, regardless of their relationship to the institution, Carter said.

Title IX, the ‘Marcia Brady’ of Campus Sexual Misconduct Laws

Abigail Boyer, associate executive director of the Clery Center, said despite the law’s benefits, its protections for survivors of sexual assault have been buried beneath an intense focus on Title IX by lawmakers, student activists and media pundits for nearly a decade.

Ensuring knowledge and implementation of the Clery Act by colleges is one of the missions of the center, which provides training and policy guidance about the law to colleges. It was founded by the parents of Jeanne Clery, the statute’s namesake, who was raped and murdered in her Lehigh University dorm in 1986.

Boyer said a former colleague at the center joked that Title IX has become the “Marcia, Marcia, Marcia” of campus sexual misconduct laws, while the Clery Act is the oft-ignored sister, Jan. (Boyer was referring to the iconic quote from the early 1970s sitcom The Brady Bunch.)

Boyer said the Clery Act is mostly known for requiring colleges to publish yearly reports about crimes committed on and near their campuses, even though the law’s protections for survivors of sexual violence are arguably its most powerful aspect. She and other leaders at the center believe the law’s requirements need to be emphasized more in national conversations about campus sexual assault.

“What kind of public relations can there be for Clery so people recognize its benefits?” Boyer said. “There’s missed opportunities for how the Clery Act can be a supportive force for students and employees.”

Jessica Mertz, executive director of the Clery Center, said Title IX has taken a much more prominent role in American culture and politics when campus sexual assault is discussed. She noted the popularity of a documentary on campus rape, The Hunting Ground, which focuses on Title IX, and the controversial 2011 Dear Colleague letter, which was Title IX guidance published by the Obama administration in response to reports about widespread sexual assault on college campuses.

“Title IX has become so politicized in a way that Clery hasn’t, which is probably good,” Mertz said. “Clery is much more transparent about accountability, covers a wide range of crimes and has historical bipartisan support. It hasn’t come under the same light … in the same way that Title IX has.”

But this lack of attention has left some student survivors in the dark about their rights under the Clery Act and can cause them to hesitate to report incidents.

The Virginia college student who was raped said her lack of knowledge about how the law could help her contributed to her hesitancy in reporting. She waited nearly a year after she was raped to formally report.

Dunn, the attorney for survivors of sexual assault, said the Clery Act has garnered less attention because it is difficult to hold accountable colleges believed to be in violation of the law compared to the legal avenues available to students under Title IX.

Limited Recourse

While Title IX gives students the right to sue their college in federal court if they believe their civil rights were not protected, they have no such cause of action under the Clery Act, Dunn said. The law does not establish a legal standard of care that college officials must have for students, as Title IX does, she said.

Clery allows for some civil penalties by the Department of Education if an institution is found in violation, but the application of those penalties may not “be construed to create a cause of action against any institution of higher education or any employee of such an institution for any civil liability; or establish any standard of care,” the law states.

Although the statute and related regulations have the potential to ensure fair processes for survivors, Dunn believes the law’s benefits are rendered nearly useless because of the limited ways to hold institutions accountable for breaking it.

"What on Earth is this statute for, if no one is going to hold you to it,” Dunn said. “It really as an advocate makes me ill.”

Students and others who believe their college violated the Clery Act can file complaints with the Department of Education’s Clery Act Compliance Division and must rely on federal officials to investigate and levy punishments against institutions if wrongdoing is found. But Dunn said she has filed dozens of such complaints on behalf of student clients, only to start multiple years of investigations and receive nearly no resolutions.

“Clery is like a black hole,” Dunn said

There have been some large fines leveled against major institutions in recent years for Clery Act noncompliance. For example, the University of California, Berkeley, was fined $2.35 million in September for reporting violations. This occurred after a six-year review of the university’s campus safety policies and procedures. The Department of Education recently found "serious violations" of the Clery Act at Arizona State University and issued a letter in April that ordered university officials to revise policies that limit students’ abilities to obtain information about developments in and results of their sexual assault complaints.

Despite these examples, Dunn believes the statute and complaint process still lack teeth.

An Ask for the Biden Administration

Lawmakers in Congress could strengthen the Clery Act by enacting accountability measures, and the Department of Education under President Biden has an opportunity to streamline the complaint process, said Dunn and Carter, of SAFE Campuses. They are calling on the Biden administration to also push institutions to properly enforce the Clery Act using new federal guidance that more explicitly lays out institutions’ responsibilities under the law.

Carter wrote to President Biden and Vice President Kamala Harris in January and called for more “urgent focus on the law’s gender-based violence requirements as well as restoration of plain-language reporting guidance.”

“Moving forward we ask that the Biden-Harris Administration better utilize Clery as a [complement] to Title IX, as was intended, in any efforts to combat gender-based violence in higher education both in the short and long-term,” the letter said.

Some believe a detailed 2016 department handbook for college officials that was rescinded by the Trump administration in October and replaced with a much shorter guidance document achieved this goal. But the handbook was not without its flaws -- some higher ed association leaders and Title IX administrators thought the handbook was overly lengthy, time-consuming and laid out some specific crime reporting requirements that were unnecessary for colleges.

But the rescission of the detailed handbook also led to more confusion about Clery requirements, as college officials were already dealing with major Title IX changes by the Trump administration. Jordan Draper, assistant vice president of student affairs and dean of students at the College of New Jersey, said the rescission of the handbook has left college officials enforcing Clery and Title IX on their campuses unsure about the scope of their responsibilities.

“The rescinding of that left us in a place where we said, ‘OK, what does this mean?’” Draper said. “Now we’ve learned and understood for more than three years that we interpret this part of Clery to mean X, Y and Z. Do we no longer interpret it that way?”

Draper said she and many other campus safety officials are looking to the Biden administration to address the confusion about the Clery Act and how the law relates to Title IX.

“It would be helpful to have some of that overlapping guidance, or at least have them speak to each other more so than they do,” she said.

Boyer, of the Clery Center, noted that Biden’s recent executive orders regarding campus sexual misconduct solely focused on Title IX and did not mention the Clery Act. Subsequent communications from Department of Education officials about the department’s ongoing review of Title IX policy did not reference the campus crime law.

But Biden has taken a particular interest in preventing violence against women throughout his political career and authored the law that amended the Clery Act in 2013 and introduced new requirements for colleges.

A spokesperson for the Department of Education said it’s unclear how officials will address Clery Act enforcement, as they are in the process of reviewing the Title IX changes implemented by the Trump administration. The department recently held a week of public hearings about DeVos’s Title IX changes, with little mention of the Clery Act, said Dunn, who spoke on the first day of public comment.

"They really have to get schools to just go by the laws," Dunn said of the Biden administration. "That’s part of why I recommended the joint guidance … It’s not a law, it’s not a statute, it’s not a reg, it’s guidance. It’s conversational and very applicable to [colleges]. Hopefully that’s the direction they’ll go."

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