Memo on Law and Policy Regarding College Sexual Assault

The following memo was prepared in 2007 for SAFER by Krista Lepper, a student at Brooklyn Law School. For additional information on sexual assault and Title IX, please also see this factsheet created by The ACLU Women's Rights Project in collaboration with SAFER.

Rape and other forms of sexual assault are the most common violent crime on college campuses. Facts About the Issue, http://safercampus.org/documents/factsheet.pdf at 1. Because of this, it is vital that all institutions of higher education (“colleges”) have a thorough sexual assault policy that focuses both on prevention and provides information about resources available to students if an assault occurs. Id. at 3. In fact, it is the law. Both the Clery Act and Title IX establish affirmative duties for colleges with respect to sexual assault and sexual harassment, such as establishing sexual assault policy and disciplinary procedures. 20 U.S.C. § 1092(f) (2000), 20 U.S.C. §§ 1681-1688. Additionally, individual states have found that colleges have a duty to their students when it comes to warning, advising, and providing security to keep them safe from crime on campus. Sharkey v. Board of Regents, 260 Neb. 166 (2000), Stanton v. Univ. of Maine Sys., 2001 ME 96 (2001), Mullins v. Pine Manor College, 389 Mass. 47 (1983). This memo will review and analyze the laws that impact sexual assault policies on college campuses in order to help SAFER evaluate those policies.

The Clery Act

Pursuant to the Jeanne Clery Disclosure of Campus Security Policy and Campus Crime Statistics Act (Clery Act), all colleges participating in federal Title IV student aid programs are required to maintain and publish campus crime statistics. Office of Postsecondary Education, U.S. Department of Education, The Handbook for Campus Crime Reporting (2005) [Hereinafter Crime Handbook]. A primary purpose of the Clery Act is to make campus crime statistics available to the campus community, both to raise awareness of crime among current students and employees as well as to provide information so prospective students and employees can make informed decisions when choosing a university. Bonnie S. Fisher, Jennifer L. Hartman, Francis T. Cullen, Michael G. Turner, Making Campuses Safer for Students: The Clery Act as a Symbolic Legal Reform, 32 Stetson L. Rev. 61 at 71 (2002). A second major purpose of the law is to encourage colleges to institute adequate security policies. The Clery Act specifically addresses sexual assault as an area where policies and procedures need to be developed. 20 U.S.C. § 1092(f)(8).

Summary of Clery Act Requirements

The Clery Act establishes both annual and daily requirements that colleges must meet. Annually, each college campus must publish and distribute a student guide containing policies for reporting and responding to campus crime; information about campus law enforcement, including the relationship between campus and local and State police, a statement about the college’s policies which encourage prompt reporting of crimes, and a description of informational programs about campus security and crime prevention. Id. § 1092(f)(1). Colleges must also provide current statistics for the two previous years of crimes committed on campus, on non-campus buildings or property, and on public property in the following categories: murder, sex offenses, robbery, aggravated assault, burglary, motor vehicle theft, manslaughter, arson, and arrests or persons referred for campus disciplinary action for liquor law or drug-related violations and weapons possession, and hate crimes. Id.

Throughout the year, colleges are required to make “timely reports” to the campus community and to keep a daily crime log. Id. § 1092(f). “Timely reports” are required when a crime is reported to campus security or local police and is considered to be a threat to other students and employees. The Clery Act gives no specific details regarding what constitutes “timely,” saying only: “Reports shall be timely and in a manner that will aid in the prevention of similar occurrences.” Additionally, colleges that have a police or security department must maintain a daily crime log recording the nature, date, time, and general location of any crimes reported to them. All crime log reports must be made available to the public within two business days of the reported incident. ¹ Id. § 1092(f)(3)-(4).

Sexual assault is singled out in the Clery Act as an area colleges must explicitly address in their annual publications. Each college is required to develop and to distribute a statement of policy regarding the school’s sexual assault programs, which should include prevention and procedures that the college follows once a sex offense has occurred. Id. § 1092(f)(8). The Clery Act specifically calls for sexual assault policy to address the following areas: educational programs, sanctions, procedures assaulted students should follow, and procedures for on-campus disciplinary action in cases of sexual assault, which must include a clear statement that the accuser and accused are entitled to the same opportunities to have others present during a campus disciplinary proceeding and both shall be informed of the outcome. Id. Additionally, the sexual assault statement must inform students of the options regarding which authorities they can notify; information regarding counseling for victims, both on campus and in community; and inform students that they have the option of changing academic and living situations if requested and if such changes are reasonably available. Id.

The Clery Act expressly announces that it in no way confers a private right of action upon any person to enforce it. It also does not create a cause of action against any institution of higher education or any employee of such an institution for any civil liability or establish any standard of care. Id. § 1092(f)(8)(C); § 1092(f)(14)(A).

Interpretation and Enforcement of the Clery Act

The U.S. Department of Education (ED) is solely responsible for the enforcement of the Clery Act. Crime Handbook at 7. If a college substantially misrepresents the number, location, or nature of any crimes it is required to report, it may be fined up to $27,500 per violation. Id. Between 1994 and 2006, ED conducted 4,623 program reviews of colleges, finding 252 violations of the Clery Act. Campus Crime: Compliance and Enforcement Under the Clery Act before the Committee on the Judiciary, 109th Cong. 2 (2006) (Statement of Robert Baker, Region III Rep. for Sec’y of Educ. Margaret Spellings). However, since its enactment, only three universities have been fined for Clery Act violations: Mount St. Clare in 2000, Salem International in 2005, and Miami University in 2005. Id.

Although the ED’s investigations do not always result in fines, the resulting reports do provide guidance and help clarify some of the more vague aspects of the Clery Act. ED program reviews have provided details about how crimes should be classified and what crimes are to be included in annual reports. Final Program Review Letter from John Jaros, Jr., Team Leader, Chicago School Participation Team, to Dr. Karen Holbrook, President, The Ohio State University (Dec. 20, 2006) [Hereinafter OSU Review Letter (on file at http://www.securityoncampus.org/); Final Program Review Determination Letter to Dr. Richard Atkinson, President, University of California System (2002) [Hereinafter UC Review Letter] (on file at http://www.securityoncampus.org/). Of particular interest to SAFER are clarifications regarding sexual assault. DE reviews have confirmed that confidentiality requirements in sexual assault cases are not valid and that the Family Education Rights and Privacy Act does not supersede the Clery Act. Letter from M. Geneva Coombs, Diretor, Case Management Teams – Northeast, to John DeGioia, President, Georgetown University (July 16, 2004) [Hereinafter Georgetown Review Letter] (on file at http://www.securityoncampus.org/).

Regarding crime classification and reporting, ED program reviews have made clear that “any crime reported to campus police or to a campus security authority, regardless of whether a formal report is filed, must be included as an entry to the daily crime log” and must be included in the crime statistics. OSU Review Letter (emphasis in original); UC Review Letter. Program reviews have also explained that colleges must indicate the location of all crimes reported and if a crime is reported to a campus security authority without a location, the incident should be treated as an on-campus crime. OSU Review Letter. Additionally, the ED review of the University of California in 2002 stated that “UC’s policy of only including crimes in which the victim could be identified was unsatisfactory” and reiterated that the purpose of the Clery Act was to provide statistics so students and employees could be well informed regarding campus crime. UC Review Letter.

Prior to clarifications by the ED, a major hurdle in the enforcement of the Clery Act was the Family Education Rights and Privacy Act (FERPA). 20 U.S.C. § 1232(g) (2000). FERPA gives students the right to have some control over the disclosure of records by educational agencies or institutions that contain information directly related to them.² Id. Colleges have used FERPA as basis for refusing to disclose campus police records about crimes in which students were involved. Fisher, supra at 65. However, both the judiciary and ED have confirmed that FERPA does not prevent every disclosure.

The first case to address FERPA’s relevance to campus security records was in 1991. Bauer v. Kincaid, 759 F. Supp. 575 (W.D. Mo. S.D. 1991). The Bauer court held that campus security records were not protected under FERPA. Id. Although campus security records were thus not protected, schools remained reluctant to release information to the public involving students out of fear of a private lawsuit. See Gonzaga University v. John Doe, 536 U.S. 273 (2002). In 2002 that fear was quelled in the case Gonzaga University v. John Doe. In Gonzaga the US Supreme Court held that FERPA does not create private rights under 42 U.S.C. § 1983 and therefore private lawsuits against the schools are not available. Id. The Gonzaga Court also reaffirmed that enforcement of FERPA is completely within ED’s purview. Id.

In 2003 and 2004, the intersection between FERPA and the Clery Act was again addressed by ED. In 2003, a Clery Act complaint was filled against Georgetown University involving a sexual assault case in which the victim was required to sign a non-disclosure agreement in order to access student conduct proceeding outcomes and sanction information in her own case. Georgetown Review Letter. ED determined that the University’s “Disclosure of Adjudication Outcome Form” was impermissible under the Clery Act, stating that “the Clery Act does require access to outcomes and sanctions information without condition.” Id. at 2. The relationship between the two laws was illuminated even further in a 2003 letter from ED to Daniel Carter of the group Security on Campus. Letter from LeRoy Rooker, Director, Family Policy Compliance Office, to Daniel Carter, Security on Campus (March 10, 2003) (on file at http://www.securityoncampus.org/). In the letter, ED explained that FERPA generally prevents redisclosure of information by one party in a disciplinary hearing about the other student without written consent of that student. However, “an institution of postsecondary education may disclose the final results of a disciplinary proceeding, if it determines that: 1) the student is an alleged perpetrator of a crime of violence or non-forcible sex offense; and 2) with respect to the allegation made against him or her, the student has committed a violation of the institution’s rules or policies. When an institution determines that an accused student is an alleged perpetrator and has violated the institution rules, then there are no restrictions on disclosure or redisclosure of the final results of a disciplinary proceeding.”³ Id. at 2. This enables all students to be made aware when a fellow student has been found by the school to have violated the disciplinary code. Therefore, even if a survivor of sexual assault decides not to press criminal charges, the student body can still be warned that the incident occurred and whether the perpetrator is still on campus.

The Clery Act and School Sexual Assault Reform

The Clery Act is a valuable tool for students who want to learn about their school’s sexual assault policy. Because it addresses sexual assault specifically, students can demand that their college produce their sexual assault policy for students to evaluate. The Clery Act requires that colleges have a policy that is both aimed at prevention and also provides students with the information they need if an assault should occur. 20 U.S.C. § 1092(f)(8). By making crime statistics available, the Clery Act gives students evidence to use when lobbying for reforms. Additionally, as ED has made clear, the Clery Act is also helpful to the campus community after a sexual assault occurs because it prevents schools from forcing students to sign non-disclosure agreements in order to participate in disciplinary proceedings. Georgetown Review Letter. Thus, if a student has been found guilty of violating the disciplinary code by committing a sexual assault, the campus community can be informed and the victim cannot be forced to be silent.

Title IX and Sexual Assault on College Campuses

Title IX, enacted in 1972, states: “No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance,” 20 U.S.C. § 1681. Although Title IX does not specifically address sexual assault, sexual assault has been acknowledged as severe, pervasive, and objectively offensive sexual harassment that could deprive a student of access to the educational opportunities provided by their school, thus falling within Title IX. Davis v. Monroe County Bd. of Educ., 526 U.S. 629 (1999), Soper v. Hoben, 195 F.3d 845 at 855 (6th Cir. 1999). The Supreme Court has held that both student-on-student and teacher-on-student harassment are actionable under Title IX. Davis, 526 U.S. 629 (student-on-student); Gebser v. Lago Vista Independent School District, 524 U.S. 274 (1998) (teacher-on-student).

Because of these rulings, students who are victims of a sex crime or sexual harassment will have an actionable claim against the college when the following conditions are met: 1) the college is deliberately indifferent to sexual harassment; 2) of which the school has knowledge; 3) of conduct that is so severe, pervasive, and objectively offensive; 4) that it can be said to deprive the victim of access to the educational opportunities or benefits provided by the school. Davis, 526 U.S. 629; Doe v. Erskine College, 2006 U.S. Dist. LEXIS 35780 (D. S.C. 2006). The victim must prove the proceeding factors at trial by a preponderance of the evidence. Simpson v. Univ. of Colo., 2007 U.S. Dist. LEXIS 30106 (D Colo. 2005).

Although Title IX provides a valuable tool to hold schools accountable, it will apply in a very limited range of cases. Because Title IX only applies to colleges which receive federal funding, assault victims are limited to filing suit against specific institutions, not ineligible colleges⁴ or the individual perpetrators. Additionally, victims are limited to the strict conditions the Court has used to define valid cause of action. Students do not always have the resources to gather adequate evidence against the college, limiting their ability to hold the institution responsible under Title IX. However, Title IX does demand that colleges not be deliberately indifferent to sexual harassment. Hopefully, this requirement and the threat of lawsuits can be used as leverage to convince colleges to act swiftly in sexual assault/harassment cases and adapt their policies accordingly.

VAWA

The Violence Against Women Act (VAWA) made interstate domestic violence and interstate violations of protective orders felonies. 18 U.S.C. §§ 2261-2262 (2000). VAWA also established a cause of action against persons who committed a gender motivated crime. 42 U.S.C. 13981. Unfortunately, in 2000 the Supreme Court found the cause of action provision of VAWA unconstitutional on the grounds that Congress had no authority to enact it. United States v. Morrison, 529 U.S. 598 (2000).

The cause of action established by VAWA would have solved one of the problems mentioned above in the Title IX discussion. It would allow victims of a sexual assault to sue the perpetrator for damages when the assault is gender-based. Julie Goldscheid, The Second Circuit Addresses Genderbased Violence: A Review of Violence Against Women Act Cases, 66 Brooklyn L. Rev. 457 at 471 (2000). It would also make it easier for students to sue their school because they would no longer have to prove that the school was intentionally indifferent to the harassment. Id. Any gender-based violation would give the student a cause of action. Although the cause of action established by VAWA is unconstitutional, the federal felonies part of the act has provided “an important complement to state law enforcement efforts to more effectively combat crimes such as domestic violence, sexual assault, and stalking,” all of which are common on college campuses as well. Id.

State Law and Campus Crime

Even though victims do not have a cause of action under federal law for gender-based crimes, they will be able to sue the perpetrator, and sometimes the institution, under their state tort laws. State cases involving sexual assault on college campuses have turned on whether the assault was foreseeable, if the school had a duty to prevent the foreseeable action, and whether the school’s violation of duty was the proximate cause of the injury. Stanton, 2001 ME 96; Sharkey, 260 Neb. 166; Mullins, 389 Mass. 47. The first case to determine that colleges have a duty to provide their students with security was Mullins v. Pine Manor College in 1983. 389 Mass. 47. The case involved the 1977 rape of a student where the school did not provide adequate security. Id. Since then, the high Courts in other states have also determined that colleges have a duty to students regarding their security. For example, in Stanton the court said the “University owed a duty to reasonably warn and advise students of steps they could take to improve their personal safety.” Stanton, 2001 ME 96 at 1050.

Whether a college has a duty to a student in a particular circumstance is a legal question for the court to decide. An example of how a court may determine whether the college has a duty was laid out in Sharkey, using a risk-utility test. The court considered (1) the magnitude of the risk, (2) the relationship of the parties, (3) the nature of the attendant risk, (4) the opportunity and ability to exercise care, (5) the foreseeability of the harm, and (6) the policy interest in the proposed solution, to decide whether the University owed a landowner-invitee duty to students to take reasonable steps to protect against foreseeable acts of hazing. Sharkey, 260 Neb. 166 at 179.

Because the laws will vary from State to State, it is impossible to know whether a student will have a cause of action until the specifics of the case are evaluated. However, based on the above case law, it is reasonable to expect colleges to be held to a minimum duty of warning students of dangers and providing them with information so they may be able to protect themselves. Because it is preferable for colleges to have policies to prevent sexual assaults from occurring in the first place, the threat of being sued in state court for not upholding its duty to students will hopefully encourage colleges to develop and enact policies that protect their students.

Conclusion

The Clery Act, Title IX, and State tort laws together provide a framework for colleges to use when developing campus safety policies. Because colleges are required to provide statements about their sexual assault policies annually, the colleges are forced to examine the policy in order to ensure the statements are accurate. Thus, they must, at minimum, review their policies and hopefully improve them when the statements are inadequate. Additionally, the threat of fines under the Clery Act and lawsuits under Title IX or various state laws serve as motivation for schools to prevent crime, specifically sexual assaults on campuses in the first place.

Further, because colleges must inform the victim of the outcome of a disciplinary hearing, s/he has more control than s/he may realize. SAFER should work with victims to have the results of disciplinary hearings included in the victim’s educational records. Once the outcome of a disciplinary hearing is entered into the victim’s educational record, there is no law preventing the victim from disclosing the results of his/her own case contained in his/her own educational record.

The framework set up by the Clery Act, Title IX, FERPA, and State laws provides valuable tools to hold universities accountable for their sexual assault policies. Additionally, SAFER has the opportunity to work within that legal structure to support students and further hold schools accountable once an assault takes place.

---Krista Lepper, Brooklyn Law School

Notes

¹ If there is clear and convincing evidence that the release of information would jeopardize a criminal investigation or the safety of an individual, cause a suspect to flee, or result in destruction of evidence, the information may be withheld until that damage is no longer likely to occur. 20 U.S.C. § 1092(f)(4)(B)(iii).
² A school must obtain written permission from the student or the student’s parents in order to release educational records. Id.
³This refers to a public disclosure by the institution. See FERPA
⁴ Because student loans are federal funding, essentially every university receives federal funds. Therefore ineligible universities are still, in all likelihood, bound by Title IX.