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Clery Act

Are Climate Surveys Part of Title IX/Clery Act Compliance?
Posted by On Wednesday, September 9, 2015

On April 29, 2014, the White House Task Force issued its “Not Alone” report with an overview of how to plan and conduct a campus sexual assault climate survey, as well as a sample survey based on best practices. The report urges “schools to show they’re serious about the problem by conducting the survey next year.”

In a May 2015 article, “Climate Surveys Are Coming,” readers were told, “The task force’s suggestion that schools conduct climate surveys is one of several signals that surveys soon will be required as part of a Title IX/Clery Act compliance program.”

On the same day that the White House report came out, the Department of Education’s Office for Civil Rights issued the guidance document, “Questions & Answers on Title IX and Sexual Violence,” which listed conducting climate surveys as one of the ways to “limit the effects of the alleged sexual violence and prevent its recurrence,” if a victim requests confidentiality and does not want formal action taken against the alleged perpetrator.

Other signals that campus climate surveys soon may be mandated include OCR agreements resulting from Title IX investigations and compliance reviews that require schools to conduct surveys, including: Michigan State University, Ohio State University, University of Montana, Southern Methodist University, Lehigh University, Harvard Law School, Lyon College, Virginia Polytechnic Institute and State University, University of Dayton, Cedarville University, Glenville State College, Kentucky Wesleyan College, State University of New York, and Rockford University.

Instead of waiting for federal laws or Title IX guidance that mandate climate surveys, some states have already enacted laws requiring them:

  • Maryland House Bill 571 requires institutions of higher education to “DEVELOP AN APPROPRIATE SEXUAL ASSAULT CAMPUS CLIMATE SURVEY, USING NATIONALLY RECOGNIZED BEST PRACTICES FOR RESEARCH AND CLIMATE SURVEYS,” and submit to the Maryland Higher Education Commission on or before June 1, 2016 (and every two years thereafter), a report aggregating the data collected by the survey, including:
        1. Types of misconduct
        2. Outcome of each complaint
        3. Disciplinary actions taken by institutions
        4. Accommodations made to students
        5. Number of reports involving alleged nonstudent perpetrators
  • The New YorkEnough is Enough” law signed on July 7, 2015, requires all New York colleges and universities to conduct campus climate surveys at least every other year. The survey requirement goes into effect on July 7, 2016.
  • The State of Washington passed a new law (SSB 5518.SL), requiring state universities, the regional universities, The Evergreen State College, the community colleges, and the technical colleges to conduct a campus climate survey and report their findings to the governor and legislature by December 31, 2016.
  • Louisiana passed a new law (SB 255) which provides, “When funding is made available, each public postsecondary education institution shall administer an annual, anonymous sexual assault climate survey to its students.”
  • In addition, the Massachusetts legislature is considering Bill S. 650, which would create a task force to develop a sexual assault climate survey to be administered by colleges and universities selected by the task force.

Meanwhile, Boston University launched a student survey in March 2015 (see FAQs about BU’s survey) and, while not required by law, the University of California conducted a campus climate survey on its campuses in Spring 2013 (see results and FAQs). Previously, we’ve reported on published data from other climate surveys, what experts say, and how to get started.

With Congress back in session, the Campus Accountability and Safety Act may have gained some momentum from the July 29th hearing before the Senate Committee on Health, Education, Labor & Pensions. Testimony received at that hearing included strong support from the Association of American Universities for campus climate surveys, pointing out that it is important that schools directly or indirectly control survey administration so that it addresses the unique circumstances of individual campuses.

We will continue to watch this closely as the patchwork quilt of climate survey requirements continues to unfold. We will also be hosting a webinar on Tuesday, October 13th with Peter Novak from University of San Francisco and Jessica Ladd from Sexual Health Innovations about climate surveys and data.  Follow our twitter account @CampusClarity for the link to register as the date gets closer.

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Reporting and Retaliation: Exploring the Complexities of Compliance
Posted by On Tuesday, July 7, 2015

Last week, Alexandra Brodsky, co-founder of Know Your IX, published an article in Feministing.com  titled “We need to make workplace sexual harassment easier to report,” focusing on low-wage earning women’s experiences with sexual harassment and reporting in the workplace.   The article posits, “here’s the truth: we haven’t provided women facing workplace harassment with the protections from retaliation that they need to speak up safely.”

Both Title IX and Title VII prohibit sexual harassment in the workplace, including retaliation against those who complain.  However, according to Brodsky, the fear of retaliation is not something that can be fully mitigated by these laws.  It appears that many victims’ fear is justified, as retaliation against reporters of harassment or assault is extremely common with retaliation being the number one complaint at the Equal Employment Opportunity Commission.

Brodsky argues that social and financial factors also influence a victim’s willingness – or even ability – to report sexual harassment. Specifically for non-English speaking women, immigrants, and those who are isolated in their jobs, the harasser holds a great deal of power and control over the victim.  Many victims of workplace harassment and retaliation need their jobs to keep themselves and their families alive.  They are often not earning a living wage, being paid under the table, and working overtime without compensation.

Brodsky suggests that to find a real solution to workplace sexual harassment and the lack of reporting, low-wage workers must earn a living wage and have equal legal protection regardless of citizenship status.  The fear of retaliation and a lack of trust in proper claim investigation have contributed to the 70% of folks who have been sexually harassed by a co-worker, boss, or other superior, saying that they never reported it, as reported in a 2013 HuffPost/YouGov Poll.

This sounds extremely similar to the experiences of survivors of sexual assault on college campuses.  Title IX and the Clery Act prohibit retaliation against reporters of sexual assault, as it violates an individual’s right to be free from a hostile educational environment. In its comments on the final regulations, the Department of Education admitted it did not have the authority to assure complainants they would not be subject to an investigation of their immigration status, but warned schools that “threatening an individual with deportation or invoking an individual’s immigration status in an attempt to intimidate or deter the individual from filing or participating in a complaint of dating violence, domestic violence, sexual assault, or stalking would violate the Clery Act’s protection against retaliation . . .” (see p. 62772).

A 2015 campus climate survey administered at the University of Michigan found that only 3.6% of students who experienced an unwanted sexual experience reported it to an official university resource.  The problem isn’t isolated to one university.  The Bureau of Justice Statistics’ recent report estimates that 80% of rapes or sexual victimizations against college women go unreported to the police – with 1 in 5 victims saying “fear of reprisal” was a reason they didn’t report.  The Maryland Coalition Against Sexual Assault reports “fear of reprisal” as the number one reason survivors of sexual assault don’t report the incident.

There are two major questions that come out of this information.  First, do people at your organization or institution know that Title VII, Title IX, and the Clery Act prohibit retaliation?  If they do, what is being done to ensure their safety from retaliation outside of the legal language?  It is imperative to create a safe and accountable environment that supports targets of sexual harassment and sexual assault.  Ideally, trainings, courses, and educational experiences will stop sexual assault and harassment before they begin.  However, by only focusing on prevention, we run the risk of ignoring the reality of the situation.  Sexual assault and harassment are happening daily, and when someone is brave enough to report the incident, it is the responsibility of the institution or organization to have a culture of support.

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Weekly Roundup
Posted by On Friday, March 13, 2015

An interview with the director of new documentary The Hunting Ground, the Clery act turns 25, and the OCR reveals it is investigating four more schools—pushing the total over 100.

The Hunting Ground Director on Courageous Survivors and the Birth of the Film

An interview with Director Kirby Dick about his latest documentary, The Hunting Ground, offers a disturbing portrait of the prevalence of sexual violence on college campuses as he describes “hearing the same story over and over” when interviewing victim/survivors about their assault, sexual predators, and the institution’s response. This interview with Dick in the National Post offers sobering insight into the process of the film’s creation. Dick talks about how the conversation sparked by campus screenings of his previous film, The Invisible War, which dealt with sexual assault in the military, led him and producer Amy Zeiring to make a documentary about the same crime in the context of higher education. During Q&As after showing The Invisible War, students quickly turned the discussion to campus sexual assault and then he started getting emails and letters asking him to “please make a film.” Dick says it’s exciting to see the courage of college-aged advocates who “take on their institutions…to create this national debate,” but creating safe campus environments “should be on everyone.”

Clery Act Turns 25

Today marks the twenty-fifth anniversary of the Clery Act, named in memory of Jeanne Clery, a Lehigh freshman who was sexually assaulted and murdered in her dorm. The law requires colleges and universities to disclose reports of crimes committed on and near campus. Earlier this month marked the second anniversary of the Campus SaVE Act  that expanded higher education institutions’ crime reporting requirements to include relationship violence, stalking, and hate crimes based on gender identity and national origin.   In addition, the Campus SaVE Act requires colleges and universities to develop comprehensive prevention programs to train students and employees how to recognize, report, respond to, and prevent campus sexual violence.

OCR Now Investigating Over 100 Schools

Last week we reported that Grinnell College has requested an OCR investigation of their own sexual assault investigation procedures. This week we have a story that makes it clear that if that request is granted, Grinnell will be far from alone. In fact, as of this month, the Office for Civil Rights is investigating over a hundred schools for possible non-compliance with Title IX and the Clery act, an all-time high. When the OCR first released the list of schools under investigation last April there were fifty-five schools under investigation.

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The Campus Accountability and Safety Act
Posted by On Wednesday, July 30, 2014

As of this morning, there is a new acronym you need to learn: CASA, which stands for The Campus Accountability and Safety Act. This proposed legislation was introduced by Senator Claire McCaskill and a bipartisan group of Senators, and was developed with information gathered at three roundtable discussions that we wrote about on this blog.

The purpose of the legislation is to “create incentives for schools to take proactive steps to protect their students and rid their campuses of sexual predators.” In other words, under this legislation there would be more significant consequences for noncompliance:

  • a penalty of up to 1% of the institution’s operating budget for CASA violations, and
  • increased penalties of up to $150,000 for each Clery Act violation

The bill requires schools to:

  • designate confidential advisors to (1) receive anonymous or confidential reports of sexual violence, and (2) coordinate victim support services and accommodations, with the decision to report the crime to law enforcement or campus authorities left up to the victims or survivors
  • encourage reporting by prohibiting disciplinary action against students who disclose conduct violations, such as underage drinking, in the process of reporting a sexual assault
  • provide mandatory training for campus personnel who are involved in reporting or resolving complaints of sexual violence, on how to identify sexual violence and its effects on victims and survivors, and provide specialized training for those who are involved in grievance proceedings
  • use one disciplinary process for all sexual violence complaints and prohibit athletic departments and other groups from handling the investigation or resolution of these complaints
  • disclose in the Annual Security Report how many sex offenses were investigated by the institution the previous year, and the number of those cases referred for disciplinary hearing or criminal investigation, how many of the accused were found responsible, any sanction imposed, and how many complaints were closed without resolution
  • conduct an annual standardized online survey of students to determine the incidence and prevalence of sexual violence, their knowledge of school policies and procedures, the experience of those who reported sexual violence, and the context of those reported incidents
  • enter into a memorandum of understanding with local law enforcement to define their respective responsibilities and to share information in sexual violence cases, “when directed by the victim”
  • provide contact information for its Title IX coordinator to the Department of Education, which shall be posted on a Title IX website, together with information about pending compliance investigations

(more…)

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DCL: Good Faith Effort to Comply Required
Posted by On Tuesday, July 15, 2014

On Monday, July 14, 2014, the ED issued a Dear Colleague Letter because they “have received numerous inquiries from institutions asking us to clarify their responsibilities under the Clery Act, as amended by VAWA.” This guidance repeats ED statements from May 2013 with a bit more clarity: “until final regulations are published and effective, institutions must make a good-faith effort to comply with the statutory provisions as written.”

The ED’s guidance says good faith compliance with amendments to the Clery Act, which include the Campus SaVE Act, requires institutions to expand their policies to describe the procedures and programs that satisfy those new requirements. For example, the Campus SaVE Act requires each school to have a policy that describes the procedures that will be followed when a student reports a sexual assault incident and what standard of evidence will be used to decide an accused student’s responsibility for the assault.

Therefore, the ED will be looking for information in the policy statement submitted with a school’s October 2014 Annual Security Report that satisfies all of the requirements in the Campus SaVE Act, including a description of its prevention program.

(more…)

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You Are Invited to Comment on Proposed Regulations
Posted by On Monday, June 23, 2014

On Friday, June 20th — nearly fifteen months after the Violence Against Women Reauthorization Act of 2013 was signed into law — the Department of Education published the proposed regulations to implement the Campus SaVE Act and other amendments to the Clery Act in the Federal Register. Comments are due in 30 days — on July 21, 2014 — and the regulations are expected to become final around November 1, 2014, with an estimated effective date of July 1, 2015.

While the ED points out the VAWA amendments to the Clery Act do “not affect in any way” Title IX compliance, it should also be noted that the proposed regulations are not entirely consistent with Title IX requirements. For example, the standard of evidence used in disciplinary proceedings involving sexual assault must be disclosed in an institution’s Annual Security Report but the regulations do not specify what that standard of proof should be. The ED points out, however, that schools “can comply with Title IX and the Clery Act by using a preponderance of evidence standard.” In other words, if you use another standard you’ll violate Title IX (see the ED Office for Civil Rights’ significant guidance document Questions and Answers on Title IX and Sexual Violence), but nothing in the proposed regulations says you have to use the preponderance of evidence standard.

Under the proposed regulations, descriptions of these procedural requirements for disciplinary proceedings will also need to be included in the ASRs due on October 1, 2014:

  • the different types of investigations and hearings used for dating violence, domestic violence, sexual assault, and stalking cases
  • the steps, timelines, and decision-making process for each type of proceeding
  • how the school decides which type of proceeding to use in a particular case

Again, the proposed regulations don’t spell out what these procedural requirements should be, but schools should look to the OCR’s Q&A for guidance on these issues.

The rulemaking committee also debated whether the whole list of possible sanctions for accused students and protective measures for complainants should be disclosed in the school’s ASR. The argument for transparency won so that schools would be required to disclose an “exhaustive list of sanctions” against students found responsible for misconduct. Whereas schools would only be required to disclose a range of protective measures that could be used to protect a victim’s confidentiality, which preserves the school’s flexibility to address safety issues.

While the rulemaking committee reached consensus on these proposed regulations, the ED is especially interested in hearing ideas on how to resolve questions about reporting Clery crime statistics in the ASR like these:

  • where does a stalking incident end and another stalking incident begin?
  • how do you report a continuing stalking incident that spans more than one year or occurs on more than one campus?
  • should information about incidents of Clery crimes include information about the relationship between the perpetrator and victim?

While the regulations are fairly comprehensive, the ED intends to provide “further clarification and guidance” on issues not addressed in the regulations, such as consent, and to help schools better understand these regulatory requirements.

If you want to have a voice in shaping the rules on any issue covered in the proposed regulations, submit your “constructive, information-rich” comments before 11:59 ET on Monday, July 21, 2014, following these “Tips for Submitting Effective Comments“:

  • comment on issues that are of most concern to your institution
  • cite expertise, experience, or data that supports your position
  • offer constructive criticism or support on a particular rule
  • suggest an alternative approach and explain why it would be more effective
  • offer examples of negative or positive results from the proposed rule
  • provide quantitative or qualitative data on the economic effects of the rules
  • address opposing points of view

Comments can be submitted online and are available for public viewing on Regulations.gov.

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White House Task Force Tells Victims “You’re Not Alone”
Posted by On Friday, May 2, 2014

This week the Obama administration took unprecedented steps to address the problem of campus sexual violence. The First Report from the White House Task Force to Protect Students From Sexual Assault, titled “Not Alone,” echoes President Obama’s message to victims and survivors:

Perhaps most important, we need to keep saying to anyone out there who has ever been assaulted: you are not alone. We have your back. I’ve got your back.

On the same day the Task Force report came out, the Department of Education’s Office of Civil Rights issued a new set of guidelines for Title IX compliance. This week the OCR also released a list of 55 schools that are currently under investigation by the OCR for possible Title IX violations. This sends a strong message to colleges and universities across the country to make their compliance efforts a top priority.

This post will focus on the White House Task Force report. Besides acknowledging areas that require research and further study to determine what works, the Task Force report recommends the following best practices for schools to focus on:

  • Campus Climate Surveys: Developing a comprehensive prevention program is an ongoing process. To determine the unique needs of each campus and to measure a particular program’s success, schools need to gather data on the incidence of sexual assault occurring on their campuses and assess the campus climate among students, faculty, staff, and administrators. The Task Force recommends that schools administer an annual survey in the winter or spring to gather this information and provides guidelines for conducting the surveys. In 2016, the administration will explore legislative or administrative mandates requiring schools to conduct annual campus climate surveys.
  • Prevention programs: Given that evidence on effective campus sexual assault prevention methods is limited, the Centers for Disease Control will solicit research proposals in 2015 to inform sexual violence prevention efforts. Until then, the best practice is for campuses to provide continuing and universal prevention education for all students. Specific training requirements are found in the Campus SaVE Act education program requirements and the OCR’s “Questions and Answers on Title IX and Sexual Violence.”
  • Employee Training: The Task Force emphasizes that the first person a victim talks to should be able to provide a victim with information about available resources and services, how to access confidential support, and how to navigate the school’s disciplinary process. Identifying victim advocates who can provide confidential emergency and ongoing support for victims and survivors is deemed a “key best practice.”
  • Reporting and Confidentiality Policies: The Task Force acknowledges that responding to reports of sexual assault while maintaining a victim’s request for confidentiality is a difficult balancing act. However, it is critical that victims get the support they need and schools adequately respond to the situation. The purpose of the report’s suggested policy language is to make students aware of their options for reporting or making confidential disclosures of sexual violence. The Task Force also promises to provide additional sample language on “several challenging areas” by September 2014.
  • Sexual Misconduct Policies: While a school’s sexual misconduct policies must reflect “the unique aspects of the institution and its student body,” the Task Force provides a checklist of important considerations when drafting policies that effectively address prevention, reporting, and responding to sexual misconduct.

Key elements of the Task Force’s recommended victim-services plan are to either provide comprehensive trauma-informed services on campus or partner with community-based organizations to make crisis intervention services available 24 hours a day. In addition, when reports involve criminal investigations there needs to be communication, cooperation, and coordination among campus security, local law enforcement, and victim support groups to make investigations and adjudications more efficient while supporting the victim’s recovery.

Some schools are experimenting with new ideas for investigating and adjudicating sexual assault cases. The Justice Department’s Office on Violence Against Women will begin assessing different models and identifying promising practices in October 2014. Holding offenders accountable is another area where research is “desperately lacking.” The DOJ is now seeking grant applications under its Campus Assault Perpetrator Treatment Pilot Project to gather information on current campus sanctions for sexual assault perpetrators, and to develop and test sexual offender treatment programs.

Finally, the report announces a new website — www.notalone.gov — which provides data and resources for schools, victims, and survivors. For victims and survivors, the website explains how to file a complaint with the OCR and the DOJ against schools for Title IX violations. For schools, the website explains the reporting requirements of the Clery Act and Title IX in sexual assault cases, and how FERPA applies to those obligations. There is also a school-by-school enforcement map, providing links to resolution agreements and court filings addressing Title IX and Clery Act compliance investigations.

If that wasn’t enough information to process, in future posts we’ll help you understand the OCR’s new guidelines and how to put together a prevention program that addresses both the requirements of the Task Force’s best practices and the OCR’s guidelines.

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Counting New Crime Statistics
Posted by On Tuesday, March 25, 2014

In the Fall of 1962, President Kennedy sent U.S. Marshals to the University of Mississippi to protect James Meredith, the first African-American student to matriculate at “Ole Miss,” as he faced a riot aimed at stopping him from entering the Oxford campus. Today, nearly a quarter of the university’s students are minorities and a statue of Meredith has been erected as a symbol of the university’s progress.

Sometime during the early morning hours of February 16, 2014, Meredith’s statue was defaced. A noose was tied around its neck and a Georgia state flag with the Confederate battle symbol was draped over its face. Three freshmen were implicated and expelled from their fraternity, while the university is proceeding with disciplinary action. In addition, the FBI is investigating the incident to determine if this was a hate crime intended to intimidate African Americans.

Racially motivated hate crimes are not confined to southern states.  At San Jose State University in California, an African-American freshman was subjected to “disturbing racial indignities” by his white roommates, including fastening a bicycle lock around his neck and displaying the Confederate flag in their dorm room. The victim has filed a $5 million claim against the university, alleging that the dormitory adviser ignored warning signs of a potentially dangerous situation, and four of the roommates have been charged with hate crimes and battery.

Both cases remind us not only that ugly prejudices still exist on today’s college campuses but also that hate crimes such as these are covered by the Clery Act’s reporting requirements. The Clery Act requires every postsecondary school that participates in federal student aid programs to prepare an Annual Security Report that is made available to enrolled and prospective students. These reports provide information about campus safety so that students and their families can make informed decisions about where to pursue higher education. The “Clery crimes” that must be reported range from murder and sexual assault to auto theft and arson.

Effective October 1, 2013, the Violence Against Women Reauthorization Act of 2013 amended the Clery Act reporting requirements. Prior to October 1, 2013, the Clery Act defined hate crimes as those that involved prejudice based on race, gender, religion, sexual orientation, ethnicity, and disability. Starting with the Annual Security Reports due on October 1, 2014, hate crime statistics include two additional types of prejudice: national origin and gender identity.

Hate crime statistics also include these crimes which are not reported under other categories: intimidation, larceny-theft, simple assault, and crimes involving property damage and personal injury. It should be noted that the VAWA of 2013 added these new Clery crimes, which would also be reported as hate crimes if they were motivated by prejudice: sexual assault, domestic violence, dating violence, and stalking.

The new reporting requirements are raising questions about how to count these crimes, and the Department of Education’s Rulemaking Committee is working on regulations to explain compliance, addressing issues such as how to:

  • define the new crimes
  • count and disclose statistics for these offenses

One of the subcommittees has posted Issue Paper #1, which describes the current discussion around how to define new offenses. For example, it is unclear what definition of sexual assault should be used since the FBI’s definition of sex offenses has changed but the 2013 VAWA amendments didn’t reflect those changes.

One important question addressed by Issue Paper #2 is how to count a single reported incident that falls into multiple categories. Examples of how hypothetical incidents might be counted under different interpretations of the VAWA amendments were submitted by one of the negotiators on the Rulemaking Committee to illustrate the problem.

Counting stalking incidents has also raised questions, including: does the course of conduct count as multiple stalking incidents or one incident, and how do you determine where the crime occurred?

On May 29, 2013, the Department of Education issued a memorandum, stating that:

[F]inal regulations to implement the statutory changes to the Clery Act will not be effective until after the Department completes the rulemaking process … The Department expects that institutions will exercise their best efforts to include statistics for the new crime categories for calendar year 2013 in the Annual Security Report due in October of 2014.

The January 2014 White House Report on Rape and Sexual Assault told us that “the Department of Education is engaging in negotiated rule-making with the goal of publishing a final rule by November 2014.”

In the meantime, schools will need to make their best effort at compliance until these questions are answered. We’ll follow the rulemaking proceedings and pass along information as it becomes available, trying to shed light on what constitutes “best efforts” to report these new crime statistics.

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Clery Act: Stricter Enforcement and New Requirements
Posted by On Monday, July 22, 2013

After Jeanne Clery was raped and murdered in her Lehigh University dorm room in 1986, her parents fought to give other families access to information about campus safety, which they hoped would help prevent violence at colleges and universities. Out of their efforts grew the Clery Act, requiring colleges and universities to disclose statistics about crimes that occur on and around their campuses in an Annual Security Report (ASR).

Schools began submitting ASRs in 1992, but enforcement of the act has been lax. According to a 2005 National Institute of Justice report, only 37 percent of schools reported statistics in a manner consistent with federal laws. Yet Senator Arlen Specter claimed in a 2006 Senate hearing that the Department of Education (ED) had imposed only three fines in 20 years.

Now it looks like ED is getting serious about the issue of campus safety and is no longer issuing free passes to noncompliant colleges and universities.

Even as ED ramps up Clery Act enforcement, a series of high-profile complaints filed by students across the country suggest a popular groundswell against noncompliant schools. A group of student activists even hand delivered a petition to ED requesting stricter enforcement of the Clery Act and Title IX.

New Federal Requirements

Indeed, the federal government placed campus safety front and center on March 7, 2013, when they enacted the Campus Sexual Violence Elimination (SaVE) Act. The SaVE Act expanded the crime categories in a school’s ASR to include:

  • hate crimes based on national origin, sexual orientation, and gender identity
  • domestic and dating violence
  • stalking

The SaVE Act also requires schools to create policies and education programs for students and staff that promote awareness and focus on prevention of sexual violence. These education programs are aimed at preventing sexual violence and will bolster the ED’s enforcement effort to bring about lasting change.

Given the tragic consequences of sexual violence, helping students stay safe is a goal we all share and support.

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