The Clery Act is not the only campus safety legislation to which institutions must adhere if they receive Title IV funding. Title IX, FERPA, and DFSCA are among the laws that govern institutional reporting and policies around campus violence — not withstanding state and local law.
College and university officials should be aware that these laws contain significant legal overlap, both with each other, and with the requirements of the Clery Act. Understanding the ways in which they interact is critical for the compliance success of institutions seeking to create safer campus communities.
In the broadest sense, Title IX is a civil rights law that sought to end discrimination on the basis of gender in educational institutions. This includes sexual violence on college and university campuses. In 2011, enforcement under Title IX was clarified following the influential “Dear Colleague” letter by the Department of Education’s Office for Civil Rights.
Today, Title IX requires colleges and universities to “take immediate and effective steps to end sexual harassment and sexual violence.” As such, colleges and universities will find there is significant overlap between the requirements of Title IX and the Clery Act. While the Clery Act is only relevant in higher education, Title IX also applies in K-12 settings.
Under both laws, certain individuals have reporting responsibilities when they become aware that sexual violence has occurred.
- Title IX: These individuals are referred to as “responsible employees.”
- The Clery Act: These individuals are “campus security authorities.”
Geography of responsibility
Title IX and the Clery Act both extend an institution’s reporting responsibility beyond the strict perimeter of its campus buildings.
- Title IX: Off-campus incidents can still create a hostile environment on-campus. Therefore, educational activities and programs that occur off-campus fall within a school’s reporting responsibility.
- The Clery Act: Institutions are responsible to report crimes occurring within “Clery Geography,” which includes on-campus locations, including student housing, public property within campus bounds, public property immediately adjacent to the campus, and non-campus buildings and property owned or controlled by the institution, or by a student organization officially recognized by the institution.
- Both Title IX and Clery afford rights to victims of sexual assault regardless of where the assault occurred.
Under both Title IX and the Clery Act, pastoral and professional counselors are exempt from reporting requirements, but are able to share non-personally identifiable information with the consent of the survivor, via the institution’s voluntary confidential reporting policy.
- Title IX: Institutions can also designate additional individuals for confidential exemption.
- The Clery Act: Individuals designated under Title IX confidential exemption are required to report non-personally identifiable information.
Complaint outcome notification
Title IX and the Clery Act require institutions to provide both the complainant and the respondent with written information about the outcome of a sexual violence complaint. This information must also include any sanctions imposed.
Additional Compliance Resources
Family Educational Rights and Privacy Act (FERPA)
The Family Educational Rights and Privacy Act is a 1974 federal law that protects the privacy of student education records. FERPA affirms the right of access to one’s own educational records, or to the education records of one’s minor child. It also outlines, with some exceptions, an individual’s right to have these records secured from public access.
The Overlap between FERPA and the Clery Act
Because FERPA specifically protects the status of education records, other records —such as those maintained by campus police— are not protected under this law. However, if those same law enforcement records were shared with education officials for conduct code proceedings, this new documentation would become protected as part of the student’s educational record.
While personally identifiable educational records are protected under FERPA, the Clery Act requires statistical reporting that includes non-personally identifiable information. As such, the right to privacy covered by FERPA will not prevent the disclosure of non-personally identifiable data for the purposes of Clery Act compliance, even if the identity of involved persons remains protected.
FERPA and the role of court decisions
In criminal and civil cases, education officials may find the decision to withhold or release student records is better left to the presiding court. While courts typically maintain that education records should remain private, they have the authority to decide when it is appropriate to release student records, and to what extent.
In some cases, a court will issue the decision to release documents related to the nature of allegations against an institution, or the institution’s response to those allegations. But even in these cases, student transcripts and statements may be withheld as protected documents under FERPA. Even when student documents are released to the public, they may require the redaction of personally identifiable information.
Additional Compliance Resources
Drug-Free Schools and Communities Act (DFSCA)
The Drug-Free Schools and Communities Act requires colleges and universities that receive federal funding to establish and report on drug and alcohol abuse prevention programs for students and employees.
Specifically, these institutions must implement initiatives “to prevent the unlawful possession, use, or distribution of illicit drugs and alcohol by students and employees,” both on the institution’s premises and as part of any of its off-campus activities. DFSCA compliance thus requires institutions to:
- Annually notify each employee and student, in writing, of standards of conduct; a description of appropriate sanctions for violation of federal, state, and local law and campus policy; a description of health risks associated with AOD use; and a description of available treatment programs.
- Develop a sound method for distributing annual notification information to every student and staff member each year.
- Prepare a biennial report on the effectiveness of its AOD programs and the consistency of sanction enforcement.
Beyond these requirements, substance abuse prevention programs must meet certain minimum standards. Additionally, records related to DFSCA must be maintained for at least 3 years.
Additional Compliance Resources
Other Areas of Legal Overlap
Institutions of higher education should be aware that, in addition to the policies listed here, state and local laws (e.g. the Michael Minger Act [KY]) may result in further requirements related to the violence prevention, reporting, and response.
These overlapping requirements can be difficult to navigate. If you are unsure of how your college or university should proceed, schedule a consultation with the Clery Center.