Title IX Training
Interactions with Other Laws
- The Clery Act, as amended by the Violence Against Women Act, requires institutions of higher education that receive federal student financial aid to disclose crime statistics and security information about sexual assault, domestic violence, dating violence, and stalking, that occur in their “Clery geography.” See 85 Fed. Reg. 30511 (May 19, 2020).
- Examples of overlaps:
- Definitions of sexual harassment under Title IX regulations include certain Clery Act offenses. (p. 30513).
- The same disciplinary procedures can satisfy the Clery Act and these regulations. (p. 30523).
- “Campus security authorities” who have crime-reporting obligations under the Clery Act can be the same people who have obligations to initiate grievance procedures under these regulations, but need not be. Id.
- The Clery Act requires that IHEs provide lists of potential sanctions for dating violence, domestic violence, sexual assault, or stalking. Id. at 30512. Such lists also satisfy the requirement in these regulations to describe the range of sanctions that an IHE may impose on a party found responsible. §106.45(b)(1)(vi)).
- Examples of differences:
- The Department of Education recommends having a Title IX Coordinator separate from a Clery Coordinator. (p. 30525).
- These regulations require information to be included in an IHE’s written determination regarding responsibility above what the Clery Act requires. (p. 30520).
- Clery geography may differ from the locations that are part of an “education program or activity” under these regulations. (p. 30516). 63
- Emergency removal of a student under Title IX does not necessarily require an emergency notification under the Clery Act. (p. 30517).
- Clery regulations require written explanation of rights and options to a student or employee victim of dating violence, domestic violence, sexual assault, or stalking, regardless of where the alleged offense occurred or whether it occurred in the IHE’s education program or activity. 34 C.F.R. § 668.46(b)(11)(vii).
Family Educational Rights and Privacy Act (FERPA)
- FERPA gives students the right to see their educational records, prevents IHEs from otherwise disclosing those records, and applies to all IHEs that receive federal funding. FAMILY POLICY COMPLIANCE OFFICE, U.S. DEPARTMENT OF EDUCATION, FAMILY EDUCATIONAL RIGHTS AND PRIVACY ACT (FERPA), go.usa.gov/xf2F6.
- The Department of Education believes these regulations to be consistent with FERPA, but when a true conflict exists, these regulations take precedence. (p. 30424).
- These regulations adopt the same standard for disclosure as FERPA.
- FERPA requires IHEs to disclose records “directly related to” a student, and these regulations require IHEs to disclose to the parties evidence “directly related to” allegations in a formal complaint. (p. 30423).
- This standard does not apply to health records, unless a party has submitted health records as evidence in an investigation, in which case the IHE can redact the records to disclose only what is “directly related to” the complaint. (p. 30427; 30576 §106.45(b)(5)(i)).
- IHEs may disclose that a student was found responsible in a Title IX proceeding without the student’s consent under the FERPA exceptions for personally identifiable information, for example, to another IHE in relation to enrollment or transfer. (pp. 30429-30).
- While Title IX violations can overlap with criminal sexual assault laws, an IHE cannot discharge its legal obligations by referring sexual harassment allegations to law enforcement, or requiring or advising complainants to do so. (p. 30099).
- An IHE may delay a grievance process due to concurrent law enforcement activity in some circumstances. (p. 30099, fn.466; p. 30575; § 106.45(b)(1)(v)).
- An IHE’s decision-maker cannot draw any inference about the responsibility of the respondent based solely on a party’s choice not to appear or answer questions, including their choice to avoid self-incrimination that could be used against the respondent in a criminal proceeding. (p. 30099, fn.466; p. 30577; § 106.45(b)(6)(i)).
- IHEs may use evidence obtained from law enforcement in a grievance process. (p. 30099, fn.466; p. 30576; § 106.45(b)(5)(vi)).
- The regulations make clear that nothing in them should be read to deprive a party of their free speech, due process, or other constitutional rights, including the right to remain silent (the right against self-incrimination). (p. 30573, § 106.6(d); pp. 30287-88).
- Title VII is not limited to employees and may apply to individuals other than employees. (p. 30439). And Title IX provides the same benefits and due process protections to employees as it does to students. (p. 30439).
- In grievance proceedings, IHEs must satisfy their obligations to provide auxiliary aids and services, and reasonable accommodations, under the ADA, Section 504, and Title VI. (pp. 30271-72).
- These regulations may interact with HIPAA (p. 30443), state sunshine laws (p. 30427), and state laws governing medical and counseling records. (p. 30435).