Understanding the law

Introduction

These three laws have had a dramatic effect on the way sexual assault claims are adjudicated on America’s campuses:

Title IX of the Education Amendments of 1972

Passed by Congress in 1972, Title IX is the civil rights law that requires gender equity for males and females in every educational program or activity that receives federal funding. Title IX applies not just to K-12 schools, but to institutions of higher education as well. Title IX is familiar to most people as it applies to sports, but athletics is but one of 10 key areas addressed by the law. Under Title IX, discrimination on the basis of sex also encompasses sexual harassment, sexual assault, and rape.

If a college or university is aware of, but ignores sexual harassment or assault in its programs or activities, it may be held liable under the law. A school can be held responsible in court whether the harassment is committed by faculty or staff, or by another student. In some cases, the school may be required to pay the victim monetary damages.

As an alternative to suing in civil court, student victims can also ask the Education Department’s Office for Civil Rights to investigate a school’s response to sexual assault. The Office for Civil Rights has issued a 2001 guidance document covering harassment of students by school employees, other students, and third parties. The office mandates schools take “prompt and effective action to end harassment and prevent its recurrence.”

Since its passage 35 years ago, Title IX has been amended three times, and has been the subject of a variety of reviews, Supreme Court cases, and political protest actions.

The Family Educational Rights and Privacy Act (FERPA)

In November 1974, Congress passed FERPA, as it’s known, which protects the privacy of a student’s educational records. The law grants three, basic rights to parents of minor-aged students and students aged 18 and older: the right to access educational records; to challenge the records’ contents; and to have control over disclosure of “personally identifiable information” in the records. FERPA applies to all schools receiving federal funds.

FERPA is also known as the “Buckley Amendment,” after its principal sponsor, Senator James Buckley, of New York, who offered it as an amendment on the Senate floor. Congress has modified FERPA nine times over the past 35 years; its most significant amendments have come from the 1990 passage of the Clery Act (see below).

Interpretation of the law has long proven controversial. Congress never defined what constitutes an education record, so some schools have applied its provisions to cover pretty much any document that names a student — sparking charges that schools are using a broad reading of FERPA to conceal embarrassing information from the public. College administrators argue that FERPA requires closed disciplinary proceedings in a variety of matters, including allegations of sexual assault. But in promulgating its regulations, the Education Department has said that FERPA does not prevent an institution from opening disciplinary proceedings to the public, per se. Despite that declaration, confusion still exists over how colleges should apply the provisions of FERPA.

The Jeanne Clery Disclosure of Campus Security Policy and Campus Crime Statistics Act (Clery Act)

The Clery Act became law in November 1990. It grew out of the grisly rape and murder, in April 1986, of Jeanne Clery, 19, a freshman at Lehigh University. She was killed by a fellow student who had entered her campus dormitory through a door that had been propped open. Throughout the late 1980s, Clery’s parents led a crusade to enact the original Campus Security Act, in Pennsylvania — the state law upon which the federal version would be based — after discovering that Lehigh students hadn’t been told about 38 violent crimes occurring on campus in the three years before their daughter’s death.

The Clery Act requires all colleges and universities that participate in federal financial aid programs to collect, retain, and disclose information about crime on or near their campuses. The Education Department monitors compliance, and can impose penalties, up to $27,500 for each violation, against institutions. The department can also suspend institutions from participating in federal student financial aid programs — an almost unprecedented action. In its 19-year history, the law has proven notoriously difficult for college administrators to decipher and uphold partly because of the vague definitions of crimes and partly because of the large universe of school officials who must be polled when gathering annual statistics. Confusion has been compounded by a lack of clear guidance from the Education Department over the years. Not until 2005 — nearly 15 years after the law was enacted—did the department publish its Clery Act handbook explaining all the unique reporting provisions.

In 1992, the act was amended to include certain basic rights that schools must provide survivors of sexual assaults on campus, particularly student-on-student assaults. Those provisions are known as the Campus Sexual Assault Victims’ Bill of Rights, and stipulate these five guarantees: schools must give the alleged victim and the alleged assailant equal opportunity for witnesses in disciplinary proceedings; and equal notification of the outcome of such proceedings; they must notify alleged victims of counseling services; of their options to go to local police; and of their options for changing classes and dormitory assignments in order to avoid their alleged assailants.