Clery Act Prohibits Non-Disclosure Agreements in Campus Sexual Assault Cases
The U.S. Department of Education has ruled that Arizona State unlawfully required a rape victim to sign a gag order in order to see how the school handled her case.
Transparency to complainants and respondents in how colleges and universities handle sexual misconduct cases is essential to both confidence in those systems and compliance with federal law.
Under the Jeanne Clery Act both the complainant and respondent in sexual violence cases have been owed equal, unconditional access to the results for decades. In a ruling earlier this year, the U.S. Department of Education (ED) found a university in violation of the current iteration of this requirement, possibly for the first time since it was enacted as part of the Violence Against Women Reauthorization Act of 2013.
The current version of the Clery Act’s requirements, an update to a 1992 provision, provide “that the accuser and accused be simultaneously informed, in writing, of the outcome of any disciplinary hearing arising from an allegation of sexual violence” or dating violence, domestic violence, or stalking. Parties must also be provided with a rationale explaining the basis of the decision.
ED, in findings issued on April 12, 2021, held that Arizona State University “violated the Clery Act by attempting to place conditions on the participation of the Complainant’s advisor and on the Complainant’s access to information about the determinations of the disciplinary body.”
Rather than automatically and unconditionally providing the results, the University “advised the Complainant that she must send an email to request information about the results of the disciplinary hearing and that she was required to attend a meeting to receive this information.” ED also found “that the written notification failed to provide a clear rationale for the outcomes reached…or any information about the student’s right to appeal, even though the University’s policies permit such an appeal.”
Specifically, ED held that an institution of higher education “cannot place conditions of any kind on a victim of an alleged sexual assault or their advisor, including the execution of a non-disclosure agreement, as a pre-condition to full participation in the disciplinary process or to access simultaneous written notification of the outcomes of a disciplinary proceeding”. These positions “are not, in any respect new.” This is consistent with findings ED previously issued in both 2004 and 2008.
ED considered these findings to be “serious violations of the Clery Act” and required the University to “implement new policies and procedures that align with the requirements of the Clery Act and the Department’s regulations.” The University was also required to issue an updated Annual Security Report reflecting the new policies.
S. Daniel Carter is president of Safety Advisors for Educational Campuses, LLC
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