Recently, the U.S. Department of Education (ED) replaced the 2016 Clery Act Handbook (Handbook) with the new Clery Act Appendix for FSA Handbook (Appendix). The Appendix rescinds previous ED guidance interpreting Clery Act regulations, leaving higher education institutions with 13 pages of sub-regulatory guidance. While the contents of the Appendix do not have a binding effect on institutions, the ED stated that its intent was to provide clarity regarding existing Clery Act statutory and regulatory requirements. The following Q&A addresses questions that may arise when reviewing the recent changes to Clery Act guidance.

Is the Appendix the new guiding document when it comes to Clery Act compliance?

While the stated intent of the Appendix is to provide clarity to existing requirements, it does not provide much substance beyond what is already contained in the regulations. There are also some areas where the appendix completely ignores existing regulations, meaning your institution may miss some key requirements in the regulations if you rely too heavily on the Appendix. For this reason, we recommend relying primarily on the language of the Clery Act and implementing regulations if there is a question regarding compliance, rather than relying solely on the Appendix. With consequences at the rate of $58,328 per violation, failure to comply based on strict reliance to the Appendix alone could be costly.

Can I still refer to the 2016 Clery Act Handbook?

Yes. Unlike when the new Title IX regulations were released, and the ED repudiated the old Title IX guidance, the Handbook remains available on the ED website as an archived document and does not say it has been “rescinded”. Furthermore, the Appendix does not suggest that the Handbook violates any new rules or rights. Therefore, it is fairly safe to continue using the Handbook as guidance, particularly where the Handbook provides examples that are similar to circumstances at your specific institution.

Additionally, while the changes noted in the Appendix took effect on November 4, 2020, institutions should continue to use the Handbook for the 2020 ASR and reporting deadline for distribution of institutions’ Annual Security and Fire Safety Reports for 2019, which includes the temporary extension to December 31, 2020 due to COVID-19.

Does the Appendix affect the Clery Act definitions referenced in the new Title IX regulations?

The crime definitions contained in the Appendix for the purpose of compiling campus crime data are now aligned with the new Title IX definitions of “sexual harassment.” You will recall that the new Title IX regulations define “sexual harassment” as (1) quid pro quo sexual harassment, (2) unwelcome conduct on the basis of sex that a reasonable person would determine is so severe, pervasive, and objectively offensive that it effectively denies the person access to the educational program or activity, or (3) dating violence, domestic violence, sexual assault, and stalking as defined by VAWA.  This change does not actually result in a huge shift for Clery Act compliance, because the VAWA amendments to the Clery Act that apply to sexual assault, stalking, dating violence, and domestic violence were already codified by federal regulations.

How does the change to the definition of Campus Security Authorities impact Title IX implementation?

Campus Security Authorities (CSA) are individuals specially designated under the Clery Act to facilitate crime reporting in the institution’s annual report. Previously, the Handbook expanded the definition of a CSA to include individuals that likely would not be designated as CSAs under a strict reading of the regulations. The Appendix now adheres to the regulatory definition of CSA, which includes campus security, police department personnel, individuals identified in the institution’s security policies, individuals with security-related responsibilities, and individuals with significant responsibility for student and campus activities. However, the ED did acknowledge that it will rely on the institution’s discretion for designation of CSAs, so long as the individual had “significant responsibility.” Ultimately, the Appendix gives institutions greater flexibility to make CSA designations and to decide when not to apply reporting obligations to specific individuals. This may help institutions align the CSA role with any “confidential employee” designated under Title IX, because an institution may now exclude an individual from being a CSA without having to be a professional or pastoral counselor, as previously required under the Handbook.

Does the change in Clery geography impact Title IX implementation?

One of the biggest changes outlined by the Appendix applies to the definition of Clery geography. The Appendix refers directly to the statute and regulations to define on campus property, non-campus buildings or property, and public property. Where the Handbook previously provided additional explanatory guidance that had the effect of complicating the analysis or causing institutions to be overly inclusive of crime statistics, the Appendix instead opts to simplify the geography rules substantially. The Appendix also eliminates reporting requirements for institutionally sponsored travel and indicates that defaulting to an assumption that an incident occurred on campus when the location is not known is not appropriate pursuant to the language of the statute and regulations.

Remember that under Title IX, sexual harassment must be “in a program or activity,” which includes any location, events, or circumstances over which the recipient exhibits substantial control over both the alleged harasser and the context in which the harassment occurred. Where jurisdiction under Title IX may not include online and off-campus conduct under the new regulations, the Clery Act requires institutions to report on crime that occurs on campus, in campus student housing, and on non-campus and public property within or immediately adjacent to campus. Institutions are also required to respond under the Clery Act for both on and off campus conduct. The jurisdictional requirements under Title IX and the Clery Act therefore continue to be slightly different and your institution should be careful to recognize the distinctions for proper compliance.

Will there be additional training requirements to come into compliance?

The federal regulations still require that the process for institutional disciplinary action in cases of alleged dating violence, domestic violence, sexual assault, or stalking is conducted by individuals who receive annual training on these issues, as well as conducting investigations through a process that “protects the safety of victims and promotes accountability.” The training requirements for investigations into dating violence, domestic violence, sexual assault, and stalking were also expanded pursuant to the new Title IX regulations, as these definitions fall under the definition of Title IX sexual harassment. Accordingly, it is likely that your institution will be in compliance with the requirements under the Clery Act if you have completed your required Title IX trainings.

Will this guidance change under the Biden Administration?

We think it is reasonable to expect that the ED would issue new guidance yet again under the Biden Administration, including possibly reverting back to some version of the 2016 Handbook or issuing a new one. How quickly it would do so, however, and whether any changes would come prior to the deadline for the 2021 reporting year, remains to be seen. We will thus be keeping a close eye on any changes coming out of the ED following January 20, 2021.

Overall, while the Appendix may seem as though the ED significantly walked back its prior guidance on the Clery Act, it may not actually function as such. Ultimately, the Appendix heavily reinforces requirements articulated in either the Clery Act or its implementing regulations. Where the Appendix is silent on its interpretation of the statutory and regulatory requirements, the ED has indicated that it will accept institutions’ reasonable interpretations of the Clery Act terms, provided that those terms are clearly defined within the institution’s Clery reports. If the ED honors this indication, institutions should have very few problems with compliance.

If you have any questions about Clery Act implementation at your institution, please contact a member of the Franczek Title IX Team.

As a Presidential candidate, Joe Biden promised that, if elected, he would put a “quick end” to the Trump administration’s 2020 Title IX rule on sexual harassment. Now, Biden is the projected winner of the 2020 Presidential election.  What does that mean for Title IX and, most importantly, for the schools, colleges, and universities that must comply with it? The Trump administration used rulemaking to update Title IX, not the more-easily discardable informal guidance used by the Obama administration. Unwinding this complicated new system will be challenging, and doing it in a way that protects the educational institutions who must comply with the law is essential. This post contains key questions and answers for school leaders about what the election results mean for Title IX.

Continue Reading What Comes Next? Title IX Under a Biden Presidency

When it issued its final Title IX regulations in May 2020, the U.S. Department of Education’s Office for Civil Rights said in the preamble to the rules that it would not enforce the final rules retroactively. It repeated that position in a blog post on August 5, 2020, saying unequivocally that “the Rule governs how schools must respond to sexual harassment that allegedly occurs on or after August 14, 2020.” Schools, colleges, and universities rightfully understood that they should use their old Title IX procedures to address conduct occurring before August 14, 2020.

A recent court decision from the Northern District of New York has called that understanding of the new regulations into serious doubt. The court refused to grant OCR any real deference on whether educational institutions should use new Title IX procedures for pre-August 14 conduct. There are some critical features of the case that schools, colleges, and universities can rely on to support using old Title IX procedures for conduct that occurred before the effective date of the new rules. But there is no question that the decision increases the risk of legal challenges by respondents against their schools for using old procedures in ongoing or new cases. Educational institutions should work with legal counsel to address whether the court’s decision necessitates changes to the processing of existing or future complaints under Title IX. Continue Reading Are the New Title IX Regulations Retroactive? One Court Says Yes

It has been over two months since the 2020 Title IX regulations setting forth a new procedure for addressing school-based Title IX sexual harassment complaints went into effect. The new rules require, among many other things, that all members of what we here at Franczek P.C. call the “Title IX Team” receive training. Our attorneys are leaders in helping schools and their attorneys learn the new law, both through free resources and a comprehensive training package that allows training of the entire Title IX Team–a feat that cannot be achieved through free resources alone. This blog includes a refresher on what training is required, who needs Title IX training, what to look for in a training provider, and a comprehensive list of the free resources your school, college, or university can use to help meet the compliance requirements of the new Title IX. Continue Reading The Best Things in Life: Free Title IX Training Resources for Rules Compliance

The new Title IX regulations are now in effect and require school districts to train separate administrators to perform the roles of Title IX Coordinator, Investigator, Decision-Makers (initial and appellate), and informal resolution facilitators. Franczek P.C.’s training package allows compliance for the entire Title IX Team of a school or district for one low flat fee. Contact us at TitleIX@Franczek.com for more information on our competitive training and other Title IX compliance packages.

However, we understand the hardship that the Title IX requirements place on schools and districts during this time. We recognize that many school districts and schools will not train their entire Title IX Teams soon. Accordingly, we are offering the following general sessions for individual members of the Title IX Team on Friday, October 30, 2020:

If October 30 is not convenient for your team, contact TitleIX@Franczek.com. We have broad flexibility to offer make-up sessions that fit your schedule.

Information on each session, pricing for individual sessions, and registration links are below. Discounts are available for larger groups; contact us at TitleIX@Franczek.com for more information on group rates. Continue Reading Title IX Basic and Role Training for K-12 Administrators – October 30, 2020

On October 7, 2020, the U.S. Department of Education’s Office for Civil Rights issued a blog post clarifying the definitions of “sexual assault,” “dating violence,” “domestic violence,” and “stalking” under Title IX. Your educational institution should review its policies and procedures to include this important information. Any revisions should be posted on your institution’s website along with other procedures. For K-12 institutions that use the Illinois Association of School Board’s PRESS policies, our team has revised PRESS 2:265 Exhibit 1 (E1) to address these important changes. Contact TitleIX@Franczek.com or your Franczek attorney to obtain a copy of the revised procedure.

Continue Reading OCR Clarifies VAWA “Big Five” Definitions Under Title IX, Warranting Revised Procedures

clockOn September 28, 2020, the U.S. Department of Education’s Office for Civil Rights released new technical assistance for elementary and secondary schools concerning COVID-19. The document, Questions and Answers for K-12 Public Schools in the Current COVID-19 Environment, provides OCR’s perspective on schools’ obligations under civil rights laws as schools continue to decide how to provide educational services during the pandemic. Notably for our purposes, OCR addresses how schools should handle Title IX complaints during the COVID-19 crisis. Notably, the Q&A indicates that OCR will defer to educational institutions as to whether there is a good reason to delay Title IX processes because of COVID-19. Such delays should only be temporary and should balance the interests of promptness, fairness to the parties, and accuracy of adjudications.
Continue Reading OCR Q&A Addresses Title IX, K-12 Schools, and COVID-19

A local news source from New Haven, Connecticut, reported that the New Haven Public Schools and the U.S. Department of Education’s Office for Civil Rights have reached a tentative agreement on their current transgender athlete dispute. The deal reportedly will allow transgender athletes to continue to play on athletics teams that coincide with their gender identities without losing federal funding. As discussed in an earlier blog post, OCR issued a letter in late August threatening to take away funds from a handful of Connecticut school districts and the Connecticut athletic association if transgender female students continue competing with cisgender female athletes. Subsequently, the Department of Education threatened to cut certain grant funds for magnet schools expected by numerous Connecticut schools in October. In response, the Board of Education in New Haven threatened legal action if the Department cut the grant funds. Although we will have to wait to understand the terms of any agreement, this turn of events on this issue is undoubtedly noteworthy and one we will continue to watch.

Update: Reports claim that the agreement was based on an assurance that the Connecticut school districts will not use MSAP funds toward interscholastic sports and will comply with the outcome of any court case concerning the application of Title IX to interscholastic athletic participation by transgender high school students. School districts that receive MSAP funds should take notice of this agreement. Contact us for more information.

Well, we’ve made it almost six weeks since the new Title IX Sexual Harassment regulations went into effect. And I’m happy to see that so many of our clients and friends are making good progress with revising and approving policies and completing mandated training. You may be wondering what should be next on your checklist. My recommendation: Spruce up your administrative procedures or regulations. You need to be ready to answer a question from OCR or a court about where they can find your detailed process for investigating and adjudicating Title IX Sexual Harassment complaints. For many institutions, the answer will not be the formal Title IX Sexual Harassment policy. If you do not have an administrative procedure in place, contact us for assistance. Keep reading to learn more about this requirement and what the procedures should include. Continue Reading Critical Elements for a Compliant Title IX Sexual Harassment Procedure