The response of institutes of higher education to reports of sexual violence is regulated by a complex series of overlapping regulations that can make it difficult for both the institutions and the accused parties to navigate. In addition to Title IX, the primary piece of legislation regulating sexual-based discrimination in any institution receiving federal funding, colleges are subject to regulation by the Violence Against Women Reauthorization Act of 2013 and the Clery Act. It is important to understand how these complementary pieces of legislation interact with one another to ensure your rights are not violated.

What is Title IX?

In 1972, Congress passed the Education Amendments, which updated the Higher Education Act of 1965 and other related pieces of legislation. Among the provisions enacted by the Amendments, the most significant is Title IX which prohibits any institution that receives federal funding, including all public schools, all public colleges and universities, and most private colleges and universities (since they receive federal student aid assistance), from discrimination based on sex. Although its most substantial application immediately after passage involved equal funding for women's sports, today it is most prominent in regulating the response of institutions to claims of sexual assault and violence. All schools subject to Title IX employ a coordinator to ensure compliance with the law.

Changes to the Law

In 2020, the Trump administration introduced changes to Title IX, which increased protections for students accused of sexual misconduct. Under the new regulations, the definition of sexual harassment was modified to include only those actions “so severe, pervasive, and objectively offensive that [they deny] a person equal educational access.” In addition, under the new dispensation, Title IX regulation only applies after a school is formally notified through its Title IX coordinator. Before, only an informal notification, made through community members, social networking sites, or the media, was required.

In March 2021, President Biden issued an executive order that directed Secretary of Education Miguel Cardona to consider rescinding the 2020 changes. The order also instigated a comprehensive review of these changes. Once the review is completed, a process of formal rulemaking is expected to begin that will likely neutralize some of DeVos' changes. For now, the rights of the accused have been strengthened under Title IX by the Trump administration's Education Department.

What is the Clery Act?

The Jeanne Clery Disclosure of Campus Security Policy and Campus Crime Statistics Act, known simply as the Clery Act, is a federal statute enacted in 1990 as an amendment to the Higher Education Act of 1965. The Clery Act was named for a student who was raped and murdered by another student at Lehigh University in Bethlehem, Pennsylvania, in April 1986. The rape/murder was one of 38 violent crimes that occurred at the university over a 3-year-period. But because the university wasn't required to report these crimes, Clery and her family had no way of knowing the school's violent history. Her parents sued the school, saying that Clery wouldn't have attended had the statistics been available and were awarded $2 million.

In response, the Clery Act required all colleges and universities that receive federal financial aid to record and disclose the crime statistics on their campuses. Under the act, institutions must issue an annual security report, keep a detailed crime log, and issue timely warnings of crimes that pose an imminent threat to students, faculty, or staff.

The Violence Against Women Act and the Clery Act

The Violence Against Women Act of 1994 (VAWA) was a wide-ranging federal law that was the first federal legislative package focused on ending violence against women. It included provisions on rape and battering, funding for victim services, and established the Office on Violence Against Women in the Department of Justice. Originally signed into law by President Bill Clinton on September 13, 1994, it has been reauthorized in 2000, 2005, and 2013.

The most recent reauthorization, signed by President Barack Obama on March 7, 2013, had significant implications for the enforcement of sexual harassment and assault protections on campuses. Among the changes implemented by the VAWA Reauthorization Act of 2013, the legislation significantly amended the Clery Act. Under the new regulations, the Clery Act now requires institutions to compile statistics specifically for dating violence, domestic violence, sexual assault, and stalking. In addition, institutions are required to revise the categories of hate crime to include gender identity, enhance prevention and awareness programs, and take other significant measures to ensure compliance.

Navigating Title IX, the Clery Act, and VAWA.

Subject to Title IX regulations that are currently in a state of flux on the one hand and the Clery Act as amended by the VAWA Reauthorization Act of 2013 on the other, accused individuals can be excused for feeling a bit confused. Among the many areas of uncertainty are the protections afforded to the different parties involved in the case. Under the amended Clery Act, an institution's response calls for such measures as a victim's bill of rights and the making available of supportive and remedial measures, provisions not required under Title IX. In addition, the jurisdictional limitations that apply under Title IX are not shared by the amended Clery Act.

With Title IX—as amended by the Trump administration—increasing protection for the accused and the Clery Act/VAWA pushing in the other direction, it's hard to know where you stand. If you are accused of sexual misconduct at an institute of higher education, don't leave anything to chance. Attorney Joseph D. Lento and the Lento Law Firm have extensive experience helping college students and faculty defend themselves against sexual harassment and assault accusations. Attorney Lento has handled hundreds of Title IX and other sexual misconduct cases across the United States, working tirelessly on behalf of students, faculty, and other staff to achieve the best possible outcome in each situation. Call the Lento Law Firm today at 888-535-3686 or contact us online to arrange for a confidential consultation.