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were released, and the ED repudiated the old Title IX guidance, the Handbook remains available on the ED website as an archived document and does not say it has been “rescinded”.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.