The Title IX world is abuzz with expectation about the release of regulations from the U.S. Department of Education’s Office for Civil Rights. The general consensus is that even if the Department makes some changes based on the 100,000+ comments it received on the proposed rules, any final rules released will roll back many Obama-era protections for students reporting sexual misconduct. Yet, even as the Department continues with its plans to lighten the load on institutions in the Title IX sphere, it recently issued a “blistering” report finding numerous Clery Act violations at the University of North Carolina, many of which have implications for Title IX compliance. This situation shows that institutional consequences are still alive and well in Betsy DeVos’s Department of Education, and it’s not the first time in recent history that we have seen this to be true—we’re thinking of the oddly intense decisions from OCR against Chicago Public Schools and Michigan State University. No matter how confusing the Department’s actions may be, it is our job to try to understand and follow the rules, whatever they may be. What can we learn about responding to sexual misconduct and Title IX from this recent Clery report?

The Clery Act and Title IX

Before we begin, a refresher: What is the Clery Act and how does it relate to Title IX? This federal law, enacted in 1990, aims to make information available to “consumers” of higher education—prospective and current students and their families—about crime statistics and safety on college and university campuses. However, through amendments to the law included in Section 304 of the Violence Against Women Reauthorization Act of 2013 (“VAWA”), the law also swept in a goal of preventing campus sexual assaults and improving responses to such assaults when they do occur. If those goals sound familiar, it is because they are among the key aims of Title IX. We often see overlap between the Clery Act and Title IX for that reason. For example, both the Clery Act and Title IX prohibit retaliation against a person who reports sexual assault, domestic violence, dating violence, or stalking to a university—a prohibition that came into play in the UNC report.

The UNC Report

The recent report, which was issued by the Department of Education’s Clery Act Compliance Division, concluded that UNC violated the Clery Act and a number of campus safety laws for several years. Among the issues cited were UNC’s lack of administrative capability, failure to issue timely warnings, failure to properly compile and disclose crime statistics, and failure to include required information in annual file safety reports.

Among its many findings, the report found that UNC failed to follow institutional policy in a case of an alleged sex offense. In 2012, a UNC student, Landen Gambill, reported an alleged sexual assault and abuse by her then-boyfriend, leading to charges against the boyfriend through UNC’s Honor Court. The Honor Court subsequently dropped the charges based on a lack of sufficient evidence, after which Gambill filed a federal complaint and made statements to the campus newspaper about her complaint against the University. The Honor Court then pressed charges against Gambill, claiming that her public statements regarding the case were intimidating behavior that adversely affected her boyfriend’s academic pursuits.

The Department of Education found in its report that the Honor Court’s charges violated the Clery Act’s retaliation provision and had a chilling effect on those bringing sexual violence complaints, including Gambill. But aren’t schools supposed to be more focused on protecting the rights of students accused of sexual misconduct? The significant increase in lawsuits by responding parties would seem to suggest so.

Key Takeaways for Institutional Compliance

This case is a good reminder that sexual misconduct matters require a particularly nimble balancing act by institutions. We saw the results of what some referred to as “panicked overcompliance” by schools, colleges, and universities under Obama-era guidance requiring robust protections of reporting students, and so should be wary of falling prey to that mentality again. This is particularly true when it comes to remembering the rights of reporting students, even if the pendulum has swung in the direction of the rights of responding students in many ways.

The UNC report, and particularly its treatment of Gambill’s case, show that even in this changing era of Title IX enforcement, the basic foundations of Title IX compliance still reign. Of course, there can and will be circumstances in which a school will be required to act to address perceived retaliation by a reporting student, particularly where the student receives an unfavorable outcome in the process. But we have never been a fan of “gag rules” here at Franczek, and it seems the Department felt the response to Gambill’s speech in this matter crossed a line.

The report is also a reminder that of the risks of treating Clery Act and Title IX compliance as two separate spheres. As the report shows, there is significant overlap between these areas, and consistency is key. In our audit work for college and university sexual misconduct policies and practices, our team regularly identifies concerns with lack of communication between departments, whether between the HR and student-facing Title IX functions (which you can find out more about in our upcoming webinar on December 10) or between divisions handling Clery Act and Title IX compliance. If you have any questions about how an audit could help your institution or about any other issues relating to the UNC report, please reach out to the authors of this post or any Franczek attorney.