New regulations under the federal Violence Against Women Act ("VAWA") that took effect in July have a direct impact on all institutions' Annual Security Reports as well as other aspects of institutions' compliance with the campus crime and safety requirements under the Clery Act.
Over the past three years, the US Department of Education has increased its enforcement of the Clery Act and Title IX compliance, including hiring new staff, adopting new methods for monitoring institutional compliance, and imposing more frequent and higher fines for violations. Although the first Annual Security Reports that are required to incorporate the new VAWA requirements are not due until October 1, 2015, institutions must be able to demonstrate compliance with many of the new reporting and programming requirements now. And given the current enforcement environment and complexity of the regulations, we encourage all institutions to focus now on reviewing their compliance with the new Clery Act obligations.
The new VAWA regulations introduce several additional reporting and programming requirements beyond the extensive pre-existing array of obligations under the Clery Act, including several which incorporate Title IX policy elements. The new requirements include the following:
- New categories of crime for which institutions must maintain statistics;
- Updates to many campus policies and procedures, including information about how the institution will protect the confidentiality of victims and the disciplinary action procedures it will use in cases involving alleged dating violence, domestic violence, sexual assault, or stalking;
- Prevention and awareness programs for students and employees that address policies and procedures relating to cases of dating violence, domestic violence, sexual assault, and stalking;
- Written notice to students and employees describing procedures that victims should follow if they are victims of sexual assault, as well as describing counseling, health, mental health, victim advocacy, legal assistance, and other services available to victims.
A single instance of failure to comply with a provision of the Clery Act, including a single missing policy statement, is considered by the Department to be "a violation" of the Higher Education Act and may result in a fine of up to $35,000. Frequently, the Department assesses multiple violations against an institution. Recently, the Department has also shifted away from considering mitigating factors when imposing fines: a good faith effort to comply with the Clery Act requirements will no longer shield schools from monetary penalties. As a result, six-figure fines have become the norm, and we expect penalties to continue to rise. It is critical for institutions to be proactive and to thoroughly review their Clery Act and Title IX compliance now, before a review by the Department, to avoid costly findings.
The nuances of Clery Act and Title IX compliance are complex, and require alignment across a range of institutional offices and policies. If you have questions about the new VAWA requirements or any other aspects of Clery Act and Title IX compliance, or if we can assist you in a review of your institution's compliance and preparation of your Annual Security Report, please do not hesitate to contact our Education group's lawyers and other professionals.