VAWA, DFSCA, & FERPA and requirements of the legislation

The Clery Act is not the only campus safety legislation to which institutions must adhere if they receive Title IV funding. VAWA, FERPA, and DFSCA are among the laws that govern institutional reporting and policies around campus violence — not withstanding state and local law.

College and university officials should be aware that these laws contain significant legal overlap, both with each other, and with the requirements of the Clery Act. Understanding the ways in which they interact is critical for the compliance success of institutions seeking to create safer campus communities.

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Violence Against Women Act (VAWA)

The Violence Against Women Act (VAWA) amendments to the Clery Act expand the rights afforded to campus survivors of sexual assault, domestic violence, dating violence, and stalking. It also details the role of law enforcement, the types of crime mandated for reporting, and stipulates the need for violence prevention programming. Read the full VAWA Amendments to the Clery Act.

VAWA Requirements

Law Enforcement Jurisdiction

Institutions must have a policy statement that addresses the jurisdiction of security personnel. It must also note any outstanding agreement(s), such as memoranda of understanding with local or state police, regarding the investigation of alleged criminal offenses.

Expanded Crime Reporting

Colleges and universities must provide data regarding incidents of sexual assault, dating violence, domestic violence, and stalking. Institutions must also include policy statements specific to these crimes in their annual security report. These policy statements must outline the procedures an institution will follow after an incident of sexual assault, dating violence, domestic violence, or stalking, and identify rights and options available to survivors.

Prevention Programming

Institutions must put into place prevention programs that aim to stop crimes outlined in the Clery Act before they occur. These programs should promote positive behaviors that foster healthy, mutually-respectful relationships and sexuality, encourage safe bystander intervention tactics, and seek to change behavior and social norms in safe, healthy directions.

Confidentiality

The annual security report must address how the college or university completes Clery Act public recordkeeping and data-sharing without including identifying information about the survivor, and while keeping any accommodations or protective measures confidential.

Hate Crimes

Institutions must share data on incidents of hate crimes within their Clery-reportable geography. The VAWA amendments added gender identity and national origin to the categories of bias institutions must reflect within their statistics.

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Family Educational Rights and Privacy Act (FERPA)

The Family Educational Rights and Privacy Act is a 1974 federal law that protects the privacy of student education records. FERPA affirms the right of access to one’s own educational records, or to the education records of one’s minor child. It also outlines, with some exceptions, an individual’s right to have these records secured from public access.

The Overlap between FERPA and the Clery Act

Because FERPA specifically protects the status of education records, other records —such as those maintained by campus police— are not protected under this law. However, if those same law enforcement records were shared with education officials for conduct code proceedings, this new documentation would become protected as part of the student’s educational record.

While personally identifiable educational records are protected under FERPA, the Clery Act requires statistical reporting that includes non-personally identifiable information. As such, the right to privacy covered by FERPA will not prevent the disclosure of non-personally identifiable data for the purposes of Clery Act compliance, even if the identity of involved persons remains protected.

FERPA and the role of court decisions

In criminal and civil cases, education officials may find the decision to withhold or release student records is better left to the presiding court. While courts typically maintain that education records should remain private, they have the authority to decide when it is appropriate to release student records, and to what extent.

In some cases, a court will issue the decision to release documents related to the nature of allegations against an institution, or the institution’s response to those allegations. But even in these cases, student transcripts and statements may be withheld as protected documents under FERPA. Even when student documents are released to the public, they may require the redaction of personally identifiable information.

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Drug-Free Schools and Communities Act (DFSCA)

The Drug-Free Schools and Communities Act requires colleges and universities that receive federal funding to establish and report on drug and alcohol abuse prevention programs for students and employees. Read the full DFSCA text.

Specifically, these institutions must implement initiatives “to prevent the unlawful possession, use, or distribution of illicit drugs and alcohol by students and employees,” both on the institution’s premises and as part of any of its off-campus activities. DFSCA compliance thus requires institutions to:

  • Annually notify each employee and student, in writing, of standards of conduct; a description of appropriate sanctions for violation of federal, state, and local law and campus policy; a description of health risks associated with AOD use; and a description of available treatment programs.
  • Develop a sound method for distributing annual notification information to every student and staff member each year.
  • Prepare a biennial report on the effectiveness of its AOD programs and the consistency of sanction enforcement.

Beyond these requirements, substance abuse prevention programs must meet certain minimum standards. Additionally, records related to DFSCA must be maintained for at least three years.

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Other Areas of Legal Overlap

Institutions of higher education should be aware that, in addition to the policies listed here, state and local laws (e.g. the Michael Minger Act [KY]) may result in further requirements related to the violence prevention, reporting, and response.

These overlapping requirements can be difficult to navigate. If you are unsure of how your college or university should proceed, schedule a consultation with the Clery Center.

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