In February 2023, the U.S. Department of Education’s Office for Civil Rights (OCR) issued a resource to the higher education community reiterating some of the core concepts it uses to evaluate whether institutions are providing equal athletic opportunities consistent with Title IX. For colleges and universities, this new resource should serve as a not-so-subtle prompt to review their programs for compliance with applicable standards.
While “Clery reporting requirements” and “compliance with the Clery Act” are familiar terms to staff and faculty at colleges and universities, many are unsure exactly what the Clery Act requires and why it matters. Here, in question-and-answer format, is a refresher on the Clery Act’s history, purpose and requirements.
On August 21, 2016, in a case entitled State of Texas et al. v. United States of America et al., Judge Reed O’Connor of the United States District Court for the Northern District of Texas issued a nationwide preliminary injunction prohibiting the United States government (specifically, the Office for Civil Rights of the Department of Education (“OCR”), the Department of Justice (“DOJ”), the Department of Labor and the Equal Employment Opportunity Commission) from enforcing the terms of the May 13, 2016 Dear Colleague Letter issued by OCR and DOJ. As institutions are aware , the Dear Colleague Letter articulated OCR’s and DOJ’s interpretation of Title IX and its implementing regulations as requiring K-12 schools, colleges and universities to treat a student’s gender identity as the student’s “sex” for purposes of Title IX’s prohibition against discrimination based on sex, and described several areas where schools and institutions must provide transgender students with equal access to education programs and activities “even in circumstances in which other students, parents and community members raise objections or concerns.”
In reaching its decision, the Court found that there was a likelihood that the plaintiffs (13 states and two school districts) would prevail on their claim that the Departments’ interpretation of Title IX is contrary to the plain language of the statute and its implementing regulations, and is therefore incorrect as a matter of law. Specifically, the Court determined that the term “sex,” as understood at the time that the statute and regulations were initially adopted, was understood to refer to an individual’s biological sex, rather than the individual’s gender identity.
Perhaps more significantly, in an aspect of the decision that could impact OCR’s enforcement strategy in other areas, the Court also determined that OCR and DOJ were required to comply with the federal Administrative Procedure Act (the “APA”) prior to issuing the Dear Colleague Letter, and that their failure to do so rendered the Dear Colleague Letter invalid. By way of background, the APA requires federal agencies to publish proposed rules in the Federal Register, and to provide the public a period of time to comment on them (this is commonly referred to as the “notice and comment” process). The purpose of this requirement is to enable an agency to consider the perspectives of persons or entities that would be impacted by proposed rules before they are finalized. However, not every action an agency takes is required to go through the notice and comment process, and the APA specifically excludes from its ambit agency pronouncements that amount merely to interpretations of existing rules (rather than the imposition of new substantive requirements).
In concluding that OCR and DOJ were required (and failed) to comply with the APA prior to issuing the Dear Colleague Letter, the Court noted that OCR and DOJ have applied the guidance contained in the Dear Colleague Letter as if it were binding law in a manner different than the underlying regulation had previously been applied, and that the guidance is “compulsory in nature” in that schools must comply with the guidance or be deemed in breach of their Title IX obligations.
This decision is obviously significant insofar as it impacts the enforceability of the May 13, 2016 Dear Colleague Letter. However, colleges and universities that have voluntarily implemented measures consistent with the Dear Colleague Letter may certainly continue to do so, unless they are located in states that have adopted legislation prohibiting such action. Where the decision (or, at a minimum, the reasoning underlying the decision) may have a greater impact is in its potential effect on OCR’s subregulatory guidance with respect to institutions’ obligations to prevent and address sexual violence (e.g., OCR’s April 3, 2011 Dear Colleague Letter and its April 29, 2014 Questions and Answers on Title IX and Sexual Violence). Although the arguments for and against the validity of OCR’s substantive interpretation of Title IX are different as between these two subject areas, there are certainly parallels between OCR’s use of purported subregulatory guidance on both issues. Indeed, the District Court noted the impact of the May 13, 2016 Dear Colleague Letter on institutions, as evidenced by the government’s efforts to enforce its requirements, as a significant factor in characterizing it as legislative (and thus subject to the APA) rather than interpretive in nature, and OCR’s enforcement of its guidance on sexual violence is undeniable, with over 250 active investigations at more than 200 institutions currently pending.
It is certainly possible, and perhaps even likely, that the federal government will appeal the Court’s decision in State of Texas, and in any event OCR can be expected to assert that the Court’s rationale does not apply to its guidance on sexual violence. However, the Court’s decision will certainly be used in support of pending litigation challenging the validity of OCR’s guidance on sexual violence, and in connection with congressional efforts to overturn that guidance. Needless to say, the situation merits further watching.
As expected, New York Governor Andrew M. Cuomo signed the “Enough is Enough” legislation into law on July 7, 2015. As a result, the majority of the legislation’s provisions imposing obligations on colleges and universities will become effective 90 days from that date, on October 5, 2015. Of course, institutions can, and likely will want to, make the necessary modifications to their policies, procedures and practices in advance of the effective date, so as to avoid the need to alter processes during the upcoming academic year. The provisions of the legislation requiring biennial campus climate assessments and statistical reports to the New York State Department of Education will become effective in one year, on July 7, 2016. Bond is discussing the legislation’s provisions in detail with our college and university colleagues in our ongoing statewide briefings, and will continue to do so in our Higher Education Law Report blog.
In this, our last, post on New York’s proposed sexual violence legislation, we focus briefly on three remaining aspects of the bill: climate surveys, training and implementation. Campus Surveys The legislation requires institutions to conduct a campus climate survey and to conduct such a survey “no less than every other year.” This particular section would go into effect on the 180th day following enactment of the legislation. It would appear that this would require an institution to be ready to go with its first survey at that 180 day mark, or sooner, issuing new surveys not less than every other year thereafter. The legislation provides a list of topics that, at a minimum, must be covered in the survey, including questions aimed at assessing student and employee knowledge about: (1) the role of the Title IX Coordinator; (2) campus policies and procedures addressing sexual assault; (3) how and where to report sexual assault; (4) the availability of resources on and off campus; (5) the prevalence of victimization and perpetration of sexual assault, domestic/dating violence and stalking during a set time period; (6) bystander attitudes and behavior and (7) whether victims/survivors report and the reasons they do/do not report. Needless to say, efforts are to be undertaken to ensure that answers remain anonymous. The survey results are to be published on the institution’s website. The legislation even provides that the survey is not “subject to discovery or [to being] admitted into evidence in a federal or state court proceeding or considered for other purposes in any action for damages brought by a private party” against an institution. It is not entirely clear, however, whether this state legislation would prevent the discovery or other use of this information in a federal proceeding brought under federal law. Training Section 6446 is entitled “Student Onboarding and Ongoing Training.” It provides that an institution must “adopt a comprehensive student onboarding and ongoing education campaign to educate members of the college or university community about sexual assault, domestic violence, dating violence and stalking, in compliance with applicable federal laws ….” This provision suggests that it is not the intent of the state law to require any training not already required by federal law, although the legislation does require training on the specific policies and procedures required by this particular state legislation and as a result may in fact necessitate some training content beyond what is actually required by federal law. In addition, the legislation expressly requires that training occur as part of “onboarding.” It is not yet clear whether that literally means that for new students this training must occur as part of the actual orientation process, or if it can be provided post-orientation. However, from the summary accompanying the legislation, it certainly appears that even if some form of training is literally required during orientation itself, it need not all be provided in that period, and there is recognition that the most effective training happens over a more extended period of time. The legislation also provides that institutions “shall use” multiple methods to educate students. It provides that those methods can include a President’s Welcome messaging, peer theater and peer education programs, online training, social media outreach, first year seminars, course syllabi, faculty teach-ins, and many other options. It appears entirely up to each institution to select what will work best for its community. The legislation requires that institutions provide or expand “specific training to include groups such as international students, students that are also employees, leaders and officers of registered or recognized student organizations, and online and distance education students.” It also calls for “specific training to members of groups identified as likely to engage in high-risk behavior.” Periodic assessment of the institution’s training efforts is also required. Implementation The legislation provides that “the trustees or other governing board of each [institution] shall adopt written rules for implementing all policies required pursuant to this [legislation].” In other words, it is not enough that an institution’s administration responds to the requirements of the legislation, the Board of Trustees itself must “adopt written rules for implementing” the required policies.
