Washington, DC – Today, Reps. Annie Kuster (NH-02) and Gwen Moore (WI-04) led 15 colleagues in sending a letter to the Office of the President-Elect urging the incoming administration to give consideration to the Clery Act as they plan to repair the damage done to Title IX by the Trump Administration’s rule published earlier this year. That rule, championed by President Trump and Education Secretary DeVos, altered the internal investigation and disciplinary process for sexual violence and misconduct occurring within school communities and campuses. Many subject matter experts and advocates have made clear the effect of the rule will be to chill reporting and further sweep campus sexual violence under the rug.

As the Biden Administration considers measures to repair and strengthen Title IX of the Education Amendments of 1972, this letter seeks to highlight how the Trump rule brings Title IX into conflict with the Jeanne Clery Disclosure of Campus Security Policy and Campus Crime Statistics Act (Clery Act). The rule does so by freeing institutions of their Title IX obligations unless the complainant reports an incident to an “official with authority to institute corrective measures,” limiting schools to activating their Title IX response only if the report involves students within the United States and on campus, and potentially limiting the choice of advisor for students involved in Title IX cases. It is imperative that the Clery Act and Title IX be harmonized in order for schools to properly adjudicate sexual violence claims.

“I applaud the commitment of President-Elect Biden and Vice President-Elect Harris to correct and strengthen Title IX,” said Kuster. “Protecting all students from sexual violence is a critical component of Title IX’s nearly half-century mandate to eradicate discrimination on the basis of sex within our education systems, and the Trump Administration’s rule has taken us backwards. As the new administration considers next steps, I believe the standards set by the Clery Act are critical guideposts. I am excited to work with the Biden-Harris team to ensure school communities are safe.”

"President-elect Biden and Vice President-elect Harris's commitment to protecting students will move our country forward towards rebuilding Title IX,” said Moore. “The Trump administration's Title IX rule left students who experienced sexual violence vulnerable and halted needed progress. Ensuring that Title IX works in sync with the Clery Act sets a strong standard that will safeguard the tenets of legislation aimed at fighting sex discrimination in school settings. I look forward to collaborating with the Biden administration to build upon their commitments."

“The goals of the Clery Act and Title IX can only be achieved when accusations of violence are adjudicated in a fair and transparent way, and when data concerning the prevalence of these incidents is reported and made accessible to the school community,” the Members wrote in the letter. “Unfortunately, the Trump Administration’s rule sets up several conflicts between these laws that will ultimately require correction in order for schools to successfully meet their obligations to protect students.”

They continued, “We believe the standards set by the Clery Act can be an important guide to your Administration as you take steps to improve and strengthen Title IX. One in five women and one in sixteen men experience sexual violence during their college years, but it remains the most underreported crime on our campuses. We appreciate your attention to this matter as you prepare to assume the presidency, and we stand ready to work with your administration to address these challenges.”

Last year, Rep. Kuster joined colleagues to introduce legislation that would have prohibited Secretary DeVos from implementing the Trump’s Administration Title IX rule. Rep. Kuster is a founder and co-chair of the Bipartisan Task Force to End Sexual Violence. Rep. Moore is a founder and co-chair of the Bipartisan Working Group to End Domestic Violence. They were joined on today’s letter by: André D. Carson (IN-07), Steve Cohen (TN-09), Val B. Demings (FL-10), Debbie Dingell (MI-12), Lois Frankel (FL-21), Sylvia R. Garcia (TX-29), Jahana Hayes (CT-05), Eddie Bernice Johnson (TX-30), Ro Khanna (CA-17), Carolyn B. Maloney (NY-12), Katie Porter (CA-45), Lucille Roybal-Allard (CA-40), and Peter Welch (VT-AL).

The text of the letter is available here and below:

Dear President-Elect Biden,

As your incoming administration considers initiatives to combat campus sexual violence and reforms to the Trump Administration’s Title IX rule published May 19, 2020 (34 CFR 106), we wish to call to your attention how that rule creates conflicts and discrepancies with full and proper enforcement of the Jeanne Clery Disclosure of Campus Security Policy and Campus Crime Statistics Act (Clery Act). We urge you to ensure these issues are rectified in any reforms your Administration proposes to Title IX.

As outlined in the Clery Center’s Position Statement on this matter, although the Clery Act is a consumer protection law and Title IX is a civil rights law, both laws share a common purpose of creating safe campuses and equal access to education. The National Association of Clery Compliance Officers and Professionals (NACCOP) asserts a similar viewpoint and emphasizes that the diversity of colleges and universities and the challenges these proscriptive regulations place upon them to safeguard their students’ safety while maintaining compliance.

The goals of the Clery Act and Title IX can only be achieved when accusations of violence are adjudicated in a fair and transparent way, and when data concerning the prevalence of these incidents is reported and made accessible to the school community. Unfortunately, the Trump Administration’s rule sets up several conflicts between these laws that will ultimately require correction in order for schools to successfully meet their obligations to protect students.

The 2013 Violence Against Women Act reauthorization amended the Clery Act to allow both the accuser and the accused in Title IX cases involving dating violence, domestic violence, sexual assault, and stalking to select an “advisor of choice” who can provide support, guidance, or advice. The law prevented educational institutions from limiting the choice of who this advisor could be. Yet the Trump Administration’s rule requires these advisors to conduct cross-examinations of the opposite party during live hearings, which are themselves newly mandated by the Trump rule in collegiate level Title IX cases. Due to their elevated role in the formal discipline process, some institutions may deem advisors subject to the annual training requirement under the Clery Act for all officials involved in these types of disciplinary proceedings, effectively limiting the pool from which survivors could choose an advisor. This is problematic, as this interpretation would a violation of the codified language of the Clery Act, as would any limits on an individual’s choice to an advisor. Some individuals may also be unwilling or unable to serve as an advisor because of the cross-examination responsibility. By limiting advisor options for students, the rule undermines a critical support mechanism for both parties involved in a report of violence and violates the spirit of existing law.

The rule also limits schools to activating their Title IX response only if the report involves students within the United States and on campus. This policy ignores the approximately 10% of American college students who participate in study abroad programs and establishes inconsistencies wherein a school may be permitted to adjudicate some types of off-campus misconduct, but not under the auspices of Title IX. Additionally, it contradicts geographical categories established in the Clery Act, which covers off-campus and international properties owned or controlled by student organizations officially recognized by the educational institution. The waters are muddied further if a complaint involves multiple incidents at different locations, some of which may be applicable to Title IX within the rule’s standard while others are not. The rule sets up inherent confusion that risks undermining an institution’s ability to fairly arbitrate complaints of sexual violence and undermines trust amongst the institution’s community of students and staff.

Lastly, while both Title IX and the Clery Act mandate separate reporting obligations for pertinent school employees, the rule contains problematic language that frees institutions of their Title IX obligations unless the complainant reports an incident to an “official with authority to institute corrective measures.” Yet the rule does not offer institutions much guidance as to what roles would fall under this definition. In some cases, campus security authorities (CSAs), those designated to comply with Clery Act requirements, may not be considered such authorities for the purpose of Title IX and therefore would not trigger the institution’s Title IX obligations nor coordinate with the Title IX coordinator. This presents the risk of isolating Title IX coordinators and campus security authorities, who should instead be encouraged to connect and collaborate to ensure public safety on campus.

We believe it is essential to align Title IX rules and procedures with the Clery Act in order to foster safe, equitable campuses across our nation. The Clery Act is rooted in a strong bipartisan consensus and benefitted from close coordination with subject matter experts in the field. We believe the standards set by the Clery Act can be an important guide to your Administration as you take steps to improve and strengthen Title IX. One in five women and one in sixteen men experience sexual violence during their college years, but it remains the most underreported crime on our campuses. We appreciate your attention to this matter as you prepare to assume the presidency, and we stand ready to work with your administration to address these challenges.

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