Student Rights & Title IX

Last week the Federal Department of Education released amendments to the rules implementing the Clery Act (20 U.S.C. § 1092(f)) – a law that requires colleges and universities to record and publish information about crime on and near their campuses. The new amendments require schools to collect and publish statistics regarding incidents of dating violence, domestic violence, sexual assault, and stalking as well as information about their procedures for handling these incidents in the schools’ annual reports. Some key changes made by this new rule include:

A New Definition of Rape: The definition of rape will be revised in the Clery Act, which previously used an 80-year-old definition used by the FBI. From 1927 to 2011 the FBI’s Uniform Crime Reporting Program – and by incorporation the Clery Act – defined rape as: “the carnal knowledge of a female, forcibly and against her will.” In 2011 the FBI updated its definition to reflect that both men and women can be raped, that physical force is not a required element of rape, and that rape may be accomplished by penetration with objects as well as sex organs. The definition that the FBI now uses, and that colleges and universities will now be required to use is: “Penetration, no matter how slight, of the vagina or anus with any body part or object, or oral penetration by a sex organ of another person, without the consent of the victim.”

New Categories of Bias for Hate Crimes: Under the Clery Act, schools are required to report hate crimes that occur on their campuses or school-owned property. Before the VAWA reauthorization, the categories of bias that could form the basis of a hate crime were: race, religion, ethnicity, gender, sexual orientation, and disability. The amendments add the category of “gender identity,” and separate out “national origin” from “ethnicity” to make more clear what types of bias are covered by the law.

Colleges, universities, and graduate schools have had a reputation for not taking students’ complaints of sexual misconduct seriously. School disciplinary systems that were set up to deal with cheating, plagiarism, and more “academic” misconduct are ill equipped to deal with the complexities of interpersonal relationships that often come into play when there is conflict regarding sex. Undoubtedly some schools have swept accusations of rape or harassment under the rug. But in about 2001, the pendulum started to swing in the opposite direction, and today schools are under intense pressure from the federal government to investigate, convict, and discipline students as quickly as possible for any perceived incident of sexual misconduct, or else risk the “death penalty” of losing all federal funding. Because schools are no better equipped to deal with adjudicating sexual assault complaints now than they were 10 years ago, this well-intentioned reversal of attitudes frequently results in an unfair process where innocent students can be quickly railroaded to a preordained outcome in which they are branded rapists and expelled without any of the protections they would receive in the criminal justice system.

Articles Posted in Student Rights & Title IX

An Overview of the Department of Education’s New Rules Implementing the Clery Act

So You’ve Been Accused of Sexual Assault or Misconduct on Campus. Here’s What You Need to Know