What Colleges and Universities Must Do to Comply with Title IX, the Clery Act, and FERPA: Preventing and Responding to Sexual Assault, Domestic Violence, Dating Violence, and Stalking*
Title IX, the Clery Act, and FERPA are three federal laws that apply to nearly all colleges and universities in the United States. The laws are consistent with each other and overlapping, though each creates different specific requirements that schools must meet in policies, programs, and procedures addressing sexual violence, domestic violence, dating violence, stalking, and other forms of gender-based harassment. This guide covers the major issues that schools must focus on to comply with these laws, and explains the source of these requirements.
Creating, Revising, and Implementing A Sexual Misconduct Policy
Every school must have a sexual misconduct policy that serves as a single, easy-to-understand document explaining the institution’s rules and procedures related to sexual consent and sexual misconduct, and students’ rights and the school’s obligations in relation to conduct addressed in the policy. This policy must be widely available to students, employees, and others who may be impacted by it.
The Clery Act and Title IX prescribe certain information that must be included in a school’s sexual misconduct policy. Important information about creating and implementing a sexual misconduct policy that complies with legal requirements is available at the federal government’s website created to provide assistance with these matters, notalone.gov/schools. Another resource that may assist a school in understanding its obligations, as well as the process and stakeholders to engage to formulate an appropriate sexual misconduct policy, is the Checklist for Campus Sexual Misconduct Policies, released in April 2014 by the White House Task Force to Protect Students from Sexual Assault (“Task Force”). “Sample Language and Definitions for a School’s Sexual Misconduct Policy,” also created by the Task Force, is another useful document for schools.
To best serve students by supporting healthy sexuality and creating a clear and unambiguous standard, schools should strongly consider adopting an affirmative consent standard in defining consent to sexual activity. Many schools, including all colleges and universities receiving state funds in California, all public higher education institutions in New York, and almost all Ivy League schools, among others, have adopted an affirmative consent standard. The following language, mandatory for all California higher education institutions receiving state funds, is an example of an affirmative consent standard:
‘Affirmative consent’ means affirmative, conscious, and voluntary agreement to engage in sexual activity. It is the responsibility of each person involved in the sexual activity to ensure that he or she has the affirmative consent of the other or others to engage in the sexual activity. Lack of protest or resistance does not mean consent, nor does silence mean consent. Affirmative consent must be ongoing throughout a sexual activity and can be revoked at any time. The existence of a dating relationship between the persons involved, or the fact of past sexual relations between them, should never by itself be assumed to be an indicator of consent.
Cal. S.B. 967 (as enacted). Crucial language accompanying this definition makes explicitly clear that affirmative consent cannot be given by a person who is asleep, unconscious, incapacitated by drugs, alcohol, or medication such that the student could not understand the fact, nature of extent of the sexual activity, or mentally or physically unable to communicate. Additionally, an accused student’s intoxication or recklessness is not a defense.
Once a school has formulated and implemented a sexual misconduct policy that fits its unique community and complies with federal and state legal requirements, it is necessary to institute a process for regularly reviewing and revising the policy, ideally on an annual basis. The sexual misconduct policy review process should aim to ensure that the policy continues to satisfy federal and state legal requirements, incorporates evolving best practices with regard to the issues addressed in the policy, accounts for lessons learned from the policy’s implementation, and responds to information reported in the school’s campus climate survey, which should be conducted annually.
Under Title IX, every school must appoint a single individual to serve as Title IX coordinator. The Title IX coordinator has primary responsibility for overseeing the school’s Title IX compliance efforts, including implementation of the school’s sexual misconduct policy. A school must ensure that the Title IX coordinator does not have other job responsibilities that may create a conflict of interest with Title IX duties. The Title IX coordinator must monitor the school’s policies and procedures for compliance with Title IX and ensure the policies and procedures are implemented effectively. The Title IX coordinator provides or facilitates training and education of school employees and students on Title IX policies and primary prevention education, oversees the school’s response to reports and complaints that involve potential Title IX violations, evaluates requests for confidentiality, ensures that survivors are provided with interim and remedial measures and information about all available resources, monitors investigations and disciplinary proceedings, identifies and addresses any patterns, ensures that sanctions for misconduct are reasonably calculated to eliminate the hostile environment and prevent its recurrence, reviews the need for campus-wide remedies to potential Title IX misconduct, and assesses the campus climate, among other duties. For additional information on the role of the Title IX coordinator, see “Sample Language for Title IX Coordinator’s Role in Sexual Misconduct Policy,” released by the Task Force.
Prevention and Awareness Education
The Clery Act and Title IX both require schools to take significant steps to prevent sexual assault, domestic violence, dating violence, and stalking. The Clery Act, as amended by the Violence Against Women Reauthorization Act of 2013 (“2013 VAWA”), requires schools to develop and distribute a policy on domestic violence, dating violence, sexual assault, and stalking that includes education “programs to prevent domestic violence, dating violence, sexual assault, and stalking”. These education programs must include “primary prevention and awareness programs for all incoming students and new employees,” which must contain:
- a statement that the school prohibits domestic violence, dating violence, sexual assault, and stalking;
- the definition of domestic violence, dating violence, sexual assault, and stalking in the local jurisdiction;
- the definition of consent in the context of sexual activity, as defined by the local jurisdiction;
- education about bystander intervention options that an individual may use to intervene when there is a risk of domestic violence, dating violence, sexual assault or stalking against another person;
- information about risk reduction; and
- information about the school’s policies and procedures for reporting domestic violence, dating violence, sexual assault, or stalking, the campus investigatory and adjudicatory procedures, and a victim’s rights and options, including academic and other accommodations and support services.
Schools must also institute ongoing prevention and awareness campaigns for students and faculty that include the above-described topics. To be effective, prevention programs should be based on the best available evidence and consistent with best practices. In “Preventing Sexual Violence on College Campuses: Lessons from Research and Practice,” an important resource that provides best practices for sexual violence prevention programs, the CDC reports that prevention programs that are theory-based and include multiple skill-based sessions have the greatest potential to reduce sexual violence.
In April 2014, the Task Force released “Establishing Prevention Programming: Strategic Planning for Campuses” to assist schools in implementing effective prevention programs. Another important document created by the Task Force to help schools understand the components of bystander intervention, and which provides links to existing bystander intervention programs, is “Bystander-Focused Prevention of Sexual Violence.” Additional materials to assist schools in understanding and implementing effective prevention programs are available at notalone.gov/schools.
Schools have an obligation to institute prevention programs under Title IX, since schools must provide all students with equal educational opportunities and may not subject their students to a hostile environment. Prevention programs assist schools in achieving these Title IX objectives. By instituting primary prevention programs that satisfy Clery Act requirements, a school generally will satisfy a large portion of its prevention education obligations under Title IX. In addition to these programs, to satisfy Title IX obligations, a school should continually review Title IX reports and campus climate surveys to identify any patterns or clusters of sexual violence or risk factors. Any pattern may indicate a group of students (such as fraternity members or athletes) that should participate in additional primary prevention and bystander intervention education to satisfy Title IX’s requirement to prevent or eliminate a hostile environment. For a discussion of the role of prevention programs in achieving Title IX compliance, see the 2011 Dear Colleague Letter (pp. 14-15) and “Questions and Answers on Title IX and Sexual Violence” (J-4).
Policies and Procedures for Reporting or Confidentially Disclosing Sexual Violence
Title IX and the Clery Act require schools to have in place a sexual misconduct policy that addresses several issues to provide students with information about options for reporting or confidentially disclosing sexual assault, domestic violence, dating violence, or stalking to an appropriate school employee. Key items that the policy must include with respect to reporting are described in the Checklist for Campus Sexual Misconduct Policies.
The Clery Act requires schools to collect and report data about various crimes, including sexual violence, dating violence, domestic violence, and stalking, that occur on campus, on certain “off-campus” property, and on certain public property. Guidance on Clery reporting geography and other issues related to Clery compliance is available from the Clery Center, and a helpful summary is found in the Intersection of Title IX and Clery Act chart. The 2013 VAWA amendments to the Clery Act added domestic violence, dating violence, and stalking to the crimes for which data must be collected and reported in a school’s Annual Security Report (ASR). Also, under the Department of Education final regulations implementing the 2013 VAWA amendments, schools must disclose the number of crime reports they investigate and determine to be “unfounded,” and must comply with certain requirements before labeling a report “unfounded.”
Under the Clery Act, campus security authorities are required to report incidents of certain crimes for inclusion in a school’s Annual Security Report (ASR). Schools must identify, and describe in their sexual misconduct policy, which individuals on campus are campus security authorities. Campus security authorities must be appropriately trained to fulfill their Clery reporting duties and to respond appropriately to a survivor’s disclosure, which includes providing a survivor with a written explanation of her or his rights and options [insert link to survivor services section] when he or she first makes a report. Under Title IX, responsible employees must report incidents of sexual violence to the school’s Title IX coordinator or another appropriate school designee. A school must provide its responsible employees with appropriate training to comply with Title IX. See “Questions and Answers on Title IX and Sexual Violence” (D-1-D-5) for more information about complying with these Title IX requirements, including details about identifying and training responsible employees. Also, see the Intersection of Title IX and Clery Act chart, released in April 2014 by the Task Force, for a detailed discussion about campus security authorities, responsible employees, and the procedures they must follow to comply with the Clery Act and Title IX.
Additionally, to comply with Title IX and the Clery Act, a school’s policy must provide students with the option to confidentially disclose sexual assault, domestic violence, dating violence, and stalking to a school employee who can serve as a victim advocate and provide emergency and ongoing support. Employees serving in this role must be appropriately trained and able to assist a survivor in obtaining accommodations and support services, and must be prepared to explain and assist the survivor in navigating the university disciplinary process, if the survivor chooses to make a formal report. The Task Force created a sample policy regarding reporting and confidentially disclosing sexual violence that provides details about these requirements. Also, see the Checklist for Campus Sexual Misconduct Policies and the Intersection of Title IX and Clery Act chart.
Campus Investigations and Adjudicatory Proceedings
Schools’ policies and practices in investigations and campus adjudicatory proceedings regarding sexual violence, dating violence, domestic violence, and stalking must fulfill certain requirements. To comply with Title IX and the Clery Act, all investigations and adjudications must be prompt, equitable, impartial, and reliable. Adjudicatory proceedings must use the preponderance of the evidence (“more likely than not”) standard. Furthermore, schools must be aware that survivors who pursue an investigation and adjudicatory proceeding, witnesses, and advocates for survivors often face retaliation from the perpetrator or the perpetrator’s peers; schools must take steps to prevent and remedy any retaliation. See the Checklist for Campus Sexual Misconduct Policies and “Questions and Answers on Title IX and Sexual Violence” for detailed guidance on Title IX investigations and the campus adjudicatory process.
Both Title IX and the Clery Act require investigators and anyone involved in adjudicating complaints of sexual assault, domestic violence, dating violence, and stalking to receive annual training on issues related to these crimes as well as how to conduct an investigation and hearing process that protects victims and promotes accountability. “Questions and Answers on Title IX and Sexual Violence” (J-1-J-3) contains more information about these issues. In “Not Alone: The First Report of the White House Task Force to Protect Students from Sexual Assault” (“Task Force Report”), the Task Force stated that it is developing several tools to assist campus officials in meeting these training obligations.
Among other requirements, the Clery Act and Title IX specify certain procedures that must be followed in a campus disciplinary proceeding when the complaint involves sexual assault, domestic violence, dating violence, or stalking. For example:
- the survivor and accused student are “entitled to the same opportunities 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”; and
- the survivor and accused student shall be “simultaneously informed, in writing” of the outcome of a disciplinary proceeding, the school’s procedures for the survivor and accused student to appeal, and any changes to the decision as a result of an appeal, and when the decision becomes final. A school may not require a victim to sign or otherwise abide by a nondisclosure agreement that would prohibit the redisclosure of this information.
See the Intersection of Title IX and Clery Act chart for more details about these requirements and how they enable a school to fulfill overlapping FERPA duties.
Schools also must ensure that remedial action taken after a disciplinary proceeding, both in terms of disciplinary action against a perpetrator and remedies offered to a survivor, complies with Title IX. See “Questions and Answers on Title IX and Sexual Violence” (H-1-H-3) for more information about these issues.
While Title IX and the Clery Act create standards and parameters that any investigation and adjudicatory proceeding involving sexual assault, domestic violence, dating violence, or stalking must utilize, there is no single system that all schools must follow. The Task Force Report noted that in October 2014, OVW will begin assessing different investigatory and adjudicatory models to identify best practices.
Support Services and Accommodations for Survivors
Title IX and the Clery Act both require schools to offer survivors appropriate resources to assist them in recovering from sexual assault, domestic violence, dating violence, and stalking, and to minimize the impact of the violence on their education. Certain resources must be offered when a survivor first discloses or reports sexual violence, as interim measures before the completion of an investigation, and as an aspect of final remedial action following a campus adjudicatory proceeding, if the survivor chooses to pursue this avenue. See “Sample Language for Interim Measures to Support Students Following an Allegation of Misconduct” for guidance from the Task Force about creating interim and supportive measures that comply with Title IX and the Clery Act.
Schools should develop a comprehensive victim services plan. “Key Components of Sexual Assault Crisis Intervention/Victim Service Resources”, released by the Task Force, provides information about existing research and promising practices. All schools should ensure that students and employee survivors have access to 24-hour crisis intervention services. The Clery Act and Title IX recognize that many colleges and universities may seek to fulfill their obligations to provide victim support services and advocacy in part by partnering with off-campus service providers. The Task Force released “Building Partnership with Local Rape Crisis Centers: Developing a Memorandum of Understanding” to assist schools in creating and formalizing these relationships.
To comply with the Clery Act, when a student or employee first reports an incident of sexual assault, domestic violence, dating violence, or stalking to the school, whether the crime occurred on or off campus, the school must provide the survivor with a written notification of his or her rights and options with respect to several issues. This same information also must be included in the school’s ASR. Schools should ensure that anyone designated as a campus security authority, responsible employee, or employee to whom students or employees can confidentially disclose, is instructed, as part of an annual training, to provide this document to survivors. This written notification must include:
- possible sanctions or protective measures that may be imposed on a perpetrator following an institutional disciplinary procedure regarding rape, acquaintance rape, domestic violence, dating violence, sexual assault, or stalking;
- procedures victims should follow if a sex offense, domestic violence, dating violence, sexual assault, or stalking has occurred, including:
- the importance of preserving evidence that may be proof in a criminal domestic violence, dating violence, sexual assault, or stalking proceeding, or in obtaining a protection order;
- to whom the alleged offense should be reported;
- options regarding law enforcement and campus authorities, including the victim’s options to:
- notify law enforcement authorities, including on-campus and local police;
- be assisted by campus authorities in notifying law enforcement authorities if the victim chooses; or
- decline to notify such authorities.
- where applicable, the rights of victims and the institution’s responsibilities regarding orders of protection, no contact orders, restraining orders, or similar orders issued by a criminal, civil, or tribal court;
- procedures for campus disciplinary action in cases alleging domestic violence, dating violence, sexual assault, or stalking, including a clear statement that:
- the proceeding shall:
- provide a prompt, fair, and impartial investigation and resolution; and
- 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;
- the accuser and accused are entitled to the same opportunities 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;
- both the accuser and the accused shall be simultaneously notified in writing of:
- the outcome of any disciplinary proceeding;
- the institution’s procedures for the accused and victim to appeal the results of the disciplinary proceeding;
- any changes to the results that occurs before the results become final; and
- when the results become final;
- information about how the school will protect the confidentiality of victims, including how publicly-available recordkeeping will be accomplished without the inclusion of identifying information about the victim, to the extent permissible by law;
- existing counseling, health, mental health, victim advocacy, legal assistance, and other services available for victims on campus and off campus;
- a victim’s options for, and available assistance in, changing academic, living, transportation, and working situations if requested by the victim and if such accommodations are reasonably available, regardless of whether the victim chooses to report the crime to campus police or local law enforcement.
- the proceeding shall:
In addition to providing information about and following the above procedures, under Title IX, a school must provide a survivor with interim measures to support her or his recovery and minimize the impact of the violence on the survivor’s education. For example, like the Clery Act, Title IX requires a school to promptly inform a survivor about options to avoid contact with the perpetrator and options to change housing, working, dining, transportation, academic, and/or extracurricular activities. These interim measures must be provided regardless of whether a survivor pursues a campus disciplinary proceeding, and as necessary, must be provided before the outcome of any investigation. Title IX also requires schools to provide a survivor with updates on the status of any investigation.
When implementing interim measures, it is important to note that Title IX requires schools to minimize the burden on the survivor. This means that a school cannot, as a matter of course, require the survivor to change living arrangements or classes while allowing the alleged perpetrator to remain. A school must carefully examine the facts of the particular case to determine appropriate interim measures. Also, to comply with Title IX, a school should make sure that a survivor is aware of support resources such as academic support, victim advocacy, housing assistance, counseling, health and mental health services, disability services, and the right to report a crime to campus or other law enforcement. See the “Questions and Answers on Title IX and Sexual Violence” (G-1-G-3) for more information about these requirements.
If a school fails to respond promptly or responds inappropriately to a report of sexual violence, the school may subject the student to a hostile environment, and would be required to remedy harms caused by its own actions or inaction, in addition to harms caused by the sexual violence that the survivor previously reported. See “Questions and Answers on Title IX and Sexual Violence” (A-5) for more details about these obligations.
Under Title IX, after a campus investigation and disciplinary proceeding, a school must offer the survivor appropriate remedies. Appropriate remedies may include ensuring that the survivor and perpetrator do not share classes or extracurricular activities; moving the perpetrator or survivor (if the survivor requests to be moved) to a different dorm; providing comprehensive survivor support, including medical, counseling, and academic support services; allowing the survivor to have extra time to complete schoolwork, withdraw from a class, or retake a class without penalty; and reviewing any disciplinary action taken against a survivor for a causal connection between the sexual violence and action that resulted in the discipline against the survivor. A school that imposes discipline on a perpetrator after a disciplinary proceeding but fails to offer a survivor appropriate remedies, through the same or a separate process, likely does not comply with Title IX. This is true regardless of whether any interim measures were in place before the outcome of the investigation. Title IX specifically requires schools to offer a survivor any service that would constitute an aspect of the appropriate final remedies even if the survivor declined the specific service as an interim measure.
Additionally, schools need to consider whether remedies for the broader campus community are appropriate, both in cases where the individual survivor is offered remedies and in instances where the school is unable to offer remedies to the survivor or impose discipline on the perpetrator because it received a report with no personally identifying information. See “Questions and Answers on Title IX and Sexual Violence” (H-1-H-3) for more information about instituting remedies that comply with Title IX.
For more details about appropriately handling reports, confidentiality, and investigations, see “Sample Language for Reporting and Confidentially Disclosing Sexual Violence”, which also applies to incidents of dating violence, domestic violence, and stalking.
Identifying the Problem, Evaluating, and Monitoring
Schools must use campus climate surveys to gather crucial information about sexual misconduct and the effectiveness of the school’s existing policies, procedures, and resources. To shape effective sexual misconduct policies and prevention programs, a school must ask students not only about the incidence and prevalence of sexual misconduct, but also questions aimed at understanding the environment on campus as it relate to sexual misconduct and sexual respect. For example, a campus climate survey enables a school to identify particular social settings, locations, or subgroups of students that are particular “hot zones” for sexual assault. Armed with this information, a school can take appropriate steps to address these issues, and thereby prevent and/or remedy a hostile environment. A climate survey also informs a school about the extent to which survivors’ needs are met by existing resources and enables a school to identify gaps in support services. Additionally, a climate survey gauges students’ experiences with the school’s prevention programs and the perceived adequacy of reporting options. All of this information, and more, gathered through a climate survey, is critical to a school’s ability to effectively prevent and respond to sexual misconduct.
The Task Force called on schools to voluntarily conduct an annual campus climate survey starting in academic year 2014-2015, and pending federal legislation would mandate climate surveys. All climate surveys should be empirically informed and based on best practices. The Task Force released “Climate Surveys: Useful Tools to Help Colleges and Universities in Their Efforts to Reduce and Prevent Sexual Assault” to assist schools in crafting and implementing climate surveys.
*While this page contains a discussion of general legal principles and specific laws, it is neither intended to be given as legal advice nor as the practice of law, and should not be relied upon by readers as such. Before taking any action, always check with a licensed attorney in your jurisdiction.
 20 U.S.C. § 485(f)(8)(A)(i).
 20 U.S.C. § 485(f)(8)(B)(i)(I), (aa)-(ff).
 20 U.S.C. § 485(f)(8)(B)(iv)(II).
 20 U.S.C. § 485(f)(8)(iv)(III), (aa)-(dd).