Every week there is a new headline about a very common problem on campuses today. A student is assaulted after midnight near her residence hall. A professor resigns after repeated allegations of sexual harassment. Student athletes accuse their university of sex discrimination because of a coach’s harassment based on sexual orientation.
While the details of each incident vary, the laws at the heart of sexual violence and sex discrimination violations and allegations are always the same. More simply, when you talk about sexual violence and sex discrimination on campus, you are talking about Title IX, the Clery Act, and the Violence Against Women Re-Authorization Act (which is really an amendment to Clery).
While most of us know Title IX in the context of equality in campus athletic opportunities—that female athletes have to have access to an equal number of athletic scholarships as do male athletes—Title IX has actually been invoked to address other forms of sex discrimination since 1991. That’s nearly 25 years of applying Title IX in the sex discrimination context.
Yet if it seems like we are recently hearing more and more about a law originally enacted in 1972, it is because we are.
There are a few reasons for that. First, the U.S. Department of Education’s Office for Civil Rights began implementing more comprehensive sexual violence guidelines in 2011. Then, two years later Congress passed the Violence Against Women Re-Authorization Act, which is an amendment to the Jeanne Clery Act of 1990. The Clery Act was consumer information legislation, and it dealt largely with reporting requirements around sexual violence incidents on campuses as well as disclosures to victims about their rights. The Violence Against Women Act and its re-authorizations added, among other things, specifics about things like dating violence, domestic violence, and stalking as well as details about reporting requirements. Together, Clery and VAWA work to complement Title IX. The final VAWA amendments went into effect on July 1, 2015.
While the laws seem very similar—and they are in some key respects—there are some key differences as well. Knowing and understanding where the laws overlap and where they do not is key to fulfilling the requirements of both laws and, more importantly, maintaining a safe, healthy environment that is conducive to learning and success.
Title IX and Clery: Where they overlap
Safety: The spirit and goals of the laws are the same. At the heart of both Title IX and Clery are the effort and desire to eliminate sexual violence and establish safe learning environments on campus.
Institutional Responsibility: Title IX and Clery also create institutional responsibilities for dealing with incidents of sexual violence or sex discrimination.
In the past, Title IX enforcement belonged to the campus office for civil rights while Clery was seen as a campus police or security department concern. The reality is that both Title IX and Clery have broad prevention, education, and remedial components that really cannot be housed within a single department or campus unit. Effectively honoring and meeting the requirements of both laws requires campus-wide effort and coordination.
Survivor Confidentiality: While the degree of confidentiality afforded to victims can vary based on circumstances, Title IX and Clery both intend and attempt to protect victims and preserve confidentiality as much as possible.
Same destination, different route: Both Title IX and Clery exist to help institutions create and maintain safe, healthy campuses that are conducive to learning and treat all students, faculty, and staff fairly and equally. Despite the similar motivations underlying the laws, there are some critical differences that affect how incidents are handled.
Nature of the Laws: Title IX was originally civil rights legislation intended to ensure gender equality on campuses. On the other hand, Clery was originally consumer information legislation designed to inform certain constituents of certain kinds of crimes. For example, if someone was raped in a residence hall on campus, students and parents had a right to know essentially what had happened and where.
Also, ongoing guidance emerges differently for each law. Title IX decisions and precedents come from case law, or judicial decisions interpreting the law as applied to related situations, while Clery is code drafted by legislators. Clery is also governed by extensive regulations. Title IX has far fewer specific regulations governing its application and interpretation.
Violations: Title IX deals with sex discrimination that affects individuals’ ability to avail themselves of their education; Title IX includes remediation for incidents of sexual harassment and the existence of a hostile environment. Clery deals more specifically with enumerated sexual violence crimes and provides detailed definitions of what constitutes certain crimes.
There is some overlap, but some incidents that are potential Title IX violations are not Clery violations and vice versa. For example, constant unwelcome comments about an individual’s appearance might create a hostile environment and trigger Title IX without overtly meeting the sexual violence standards set forth in Clery.
Security Personnel or Responsible Employees: Clery responsibilities are primarily (though not exclusively) housed with campus security or police who carry out most Clery compliance. Title IX, however, is implemented through “responsible employees” who have reporting duties based on their roles within the institution. Responsible employees are spread across campus, performing diverse functions in various departments and units.
Triggering Events: Clery is triggered when an incident is reported. Title IX is triggered when someone at the institution knew or should have known of a violation.
Responses: Title IX and Clery have specific processes for investigations, and each offers distinct protections and specific remedies. Addressing sexual harassment under Title IX might involve residence hall reassignment and required counseling. That may not be sufficient for a Clery violation.
Prevention/Education: The Clery Amendment (VAWA) requires sexual violence prevention and education programs designed to prevent and stop sexual violence. Title IX only recommends prevention-based programming.
Why do the distinctions matter?
If together Title IX and Clery offer redress for most, if not all, instances of sexual violence or sex discrimination, why does it matter which law is at play? To a certain extent, and perhaps from a victim’s perspective, it does not matter which law is driving the investigation and restoration of an individual’s rights and safety as long as those rights and safety are restored.
However, each law has a different investigation process, and victims have different expectations regarding accommodations, confidentiality, and outcomes. So how that process plays out depends on which law is implicated. Plus, certain incidents violate both Title IX and Clery. It is possible for institutions to be responsible for pursuing redress under both laws.