One of the fundamental tenets of the 2013 Violence Against Women Act (VAWA) amendments to the Jeanne Clery Act is that participants in “dating violence, domestic violence, sexual assault, or stalking” disciplinary proceedings should never be surprised that an action is being taken by an institution of higher education. Just like a respondent should never be in the dark about when or if their appeal will be heard, for example, no complainant should receive notice of a change in the outcome of their case they had no idea was coming as a result of extraordinary action being taken.
While the changing of results in response to legal challenges or new evidence isn’t new, with the hundreds of cases brought by respondents in recent years it is becoming more common. In addition to being an important reminder why it is critically important to get these cases right in the first place, it also puts the focus on one of the less well understood VAWA requirements that effectively precludes leaving the complainant out of the loop in these cases.
Under Clery regulations which took effect in 2015, at 34 CFR §668.46(k), institutions are afforded very wide latitude in how they resolve sexual violence allegations, and as a result the definition of “Proceeding” is very inclusive. It “means all activities related to a non-criminal resolution of an institutional disciplinary complaint, including, but not limited to, factfinding investigations, formal or informal meetings, and hearings.” An administrative action, including those that are extraordinary, to change the resolution of a disciplinary complaint readily meets this definition.
Clery regulations apply to the entire process, providing specifically that “a prompt, fair, and impartial process from the initial investigation to the final result” is required. “Result”, as a pertinent example, is a fluid term that covers “any initial, interim, and final decision by any official or entity authorized to resolve disciplinary matters within the institution.” If a proceeding is reopened for any reason the Clery regulations continue to apply if there is the potential for a new “final result”.
The principal requirement at issue then is that in order to be “fair” proceedings must be “transparent to the accuser and accused” (the Clery statute uses these terms which are generally understood to be equivalent to complainant and respondent respectively). As part of this both parties and any decision maker must be provided with “timely and equal access…to any information that will be used during informal and formal disciplinary” proceedings. Additionally, institutions must provide “timely notice of meetings at which the accuser or accused, or both, may be present” if any.
While this does not preclude an institution from taking steps to remedy potential procedural or factual deficiencies that may be identified through a legal action or other means it does mean that such action may not be taken unilaterally without notice to both complainant and respondent that includes access to “any information” to be used. While, consistent with the broad latitude under Clery, there is no set framework for what this must look like it should be “consistent with the institution’s policies”.
If proceedings are reopened then both the complainant and respondent should be afforded an opportunity to examine the information to be used and a meaningful opportunity to be heard in a manner consistent with the institution’s policies. While following Clery guidelines in the first place should generally limit this type of occurrence from ever happening, any exceptional means used to deal with them should be written into policy and disclosed as part of the Clery Annual Security Report policy statements to ensure that institutions have the authority to meet these Clery obligations.
This blog does not provide legal advice and does not create an attorney-client relationship. If you need legal advice, please contact an attorney directly.
This is the Clery Handbook Alison referred to.
Chapter 8 in the Clery Handbook: