The number one question I get asked by other attorneys and people I am talking with at conferences and out in the community is how to file administrative complaints with the U.S. Department of Education. I am a big fan of administrative complaints as they are much less time consuming, costly, and stressful than litigation, and can still lead to good results. Plus, you can do them on your own - you do not need an attorney to represent you (although it can definitely help, depending on the complexity of your situation and whether you feel up to going through the process on your own).
For Title IX related concerns, there are two primary complaint processes available via the U.S. Department of Education:
The U.S. Department of Education's Office for Civil Rights is responsible for investigating complaints of discrimination on the basis of several protected classes, including sex (as well as race, national origin, color, disability, and age) which occur in educational institutions that receive federal funding. Don't be fooled by a school's assertion that it does not accept federal funds - many private schools may think that Title IX does not apply to them, when in fact they accept funds to subsidize, for example, a school breakfast or lunch program. When in doubt, it won't hurt to file a complaint and let OCR sort out whether they have jurisdiction.
OCR outlines the complaint process here. They offer both an electronic complaint form and a form that you can fill out, print, and mail, fax, or scan and email to them. I strongly recommend not using the electronic complaint form as the system will not save or send you a copy of your complaint.
Information about how OCR considers and investigates complaints can be found in their Case Processing Manual. It is important to note that you must file an OCR complaint within 180 days of the incident you are filing the complaint about, or be able to prove that you are eligible for a waiver of the timeline (which can be difficult to obtain).
OCR might contact you for an interview if they need more information from you. They will then send you a letter notifying you as to whether or not they will be opening a formal investigation into your complaint. If they don't, they will give you information in the denial letter advising you how you can appeal the decision. You then have 60 days to appeal.
Clery Act complaints
The Clery Act (full name: Jeanne Clery Disclosure of Campus Security Policy and Campus Crime Statistics Act) was enacted in 1990 and was intended to promote safety and awareness of campus crime statistics at college and university campuses. Per Wikipedia, "The Clery Act requires all colleges and universities that participate in federal financial aid programs to keep and disclose information about crime on and near their respective campuses. Compliance is monitored by the United States Department of Education, which can impose civil penalties, up to $54,789 per violation, against institutions for each infraction and can suspend institutions from participating in federal student financial aid programs." The amount that an institution can be fined per violation changes every year, and it looks like Wikipedia's information is a little outdated, as the Clery Center is citing the current fine per violation at $57,317. EDIT: thank you to S. Daniel Carter at Safety Advisors for Educational Campuses, LLC for letting me know that the fine has again increased in 2020 to $58,328 per violation.
The Clery Act might sound like it is just a bunch of jargon, but it is an excellent tool for ensuring campuses are compliant with Title IX. Why? In 2015, the Clery Act was amended via the Violence Against Women Reauthorization Act of 2013 (VAWA) to include language that placed specific requirements on schools with regard to how they handle and investigate Title IX violations:
34 CFR § 668.46 - Institutional security policies and crime statistics.
(k) Procedures for institutional disciplinary action in cases of alleged dating violence, domestic violence, sexual assault, or stalking. As required by paragraph (b)(11)(vi) of this section, an institution must include in its annual security report a clear statement of policy that addresses the procedures for institutional disciplinary action in cases of alleged dating violence, domestic violence, sexual assault, or stalking, as defined in paragraph (a) of this section, and that -
(1) (i) Describes each type of disciplinary proceeding used by the institution; the steps, anticipated timelines, and decision-making process for each type of disciplinary proceeding; how to file a disciplinary complaint; and how the institution determines which type of proceeding to use based on the circumstances of an allegation of dating violence, domestic violence, sexual assault, or stalking;
(ii) Describes the standard of evidence that will be used during any institutional disciplinary proceeding arising from an allegation of dating violence, domestic violence, sexual assault, or stalking;
(iii) Lists all of the possible sanctions that the institution may impose following the results of any institutional disciplinary proceeding for an allegation of dating violence, domestic violence, sexual assault, or stalking; and (iv) Describes the range of protective measures that the institution may offer to the victim following an allegation of dating violence, domestic violence, sexual assault, or stalking;
(2) Provides that the proceedings will -
(i) Include a prompt, fair, and impartial process from the initial investigation to the final result;
(ii) Be conducted by officials who, at a minimum, receive annual training on the issues related to dating violence, domestic violence, sexual assault, and stalking and on how to conduct an investigation and hearing process that protects the safety of victims and promotes accountability;
(iii) Provide the accuser and the accused with the same opportunities to have others present during any institutional disciplinary proceeding, including the opportunity to be accompanied to any related meeting or proceeding by the advisor of their choice;
(iv) Not limit the choice of advisor or presence for either the accuser or the accused in any meeting or institutional disciplinary proceeding; however, the institution may establish restrictions regarding the extent to which the advisor may participate in the proceedings, as long as the restrictions apply equally to both parties; and
(v) Require simultaneous notification, in writing, to both the accuser and the accused, of -
(A) The result of any institutional disciplinary proceeding that arises from an allegation of dating violence, domestic violence, sexual assault, or stalking;
(B) The institution's procedures for the accused and the victim to appeal the result of the institutional disciplinary proceeding, if such procedures are available;
(C) Any change to the result; and
(D) When such results become final.
(3) For the purposes of this paragraph (k) -
(i) A prompt, fair, and impartial proceeding includes a proceeding that is -
(A) Completed within reasonably prompt timeframes designated by an institution's policy, including a process that allows for the extension of timeframes for good cause with written notice to the accuser and the accused of the delay and the reason for the delay;
(B) Conducted in a manner that -
(1) Is consistent with the institution's policies and transparent to the accuser and accused;
(2) Includes timely notice of meetings at which the accuser or accused, or both, may be present; and
(3) Provides timely and equal access to the accuser, the accused, and appropriate officials to any information that will be used during informal and formal disciplinary meetings and hearings; and
(C) Conducted by officials who do not have a conflict of interest or bias for or against the accuser or the accused.
(ii) Advisor means any individual who provides the accuser or accused support, guidance, or advice.
(iii) Proceeding 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. Proceeding does not include communications and meetings between officials and victims concerning accommodations or protective measures to be provided to a victim.
(iv) Result means any initial, interim, and final decision by any official or entity authorized to resolve disciplinary matters within the institution. The result must include any sanctions imposed by the institution. Notwithstanding section 444 of the General Education Provisions Act (20 U.S.C. 1232g), commonly referred to as the Family Educational Rights and Privacy Act (FERPA), the result must also include the rationale for the result and the sanctions.
As of the date I am writing this post, I am not aware of any website or online complaint form for filing Clery complaints. I went down a rabbit hole of phone numbers about a year ago and ended up speaking to a very helpful Clery office employee who filled me in on the procedure. It's pretty straightforward:
That's it! What happens next is a bit murky. I think your case will likely get assigned to an investigator, and what they do next, I am not sure. I've filed several Clery complaints now and have not gotten any further in the process than getting confirmation that a couple of them were assigned to an investigator. I would love to hear from you if you have filed a complaint and it has made it further than that!
Important points to note:
I hope this has been helpful for you! Please feel free to reach out to me if you have any questions and I would be happy to help you if I can.
***This blog contains information only - no legal advice is being provided and you are not a client of the firm unless we have signed a representation agreement with you***