Laws exist to safeguard students and their education. Females are particularly vulnerable to sexual harassment and assault. You may be familiar with Title IX:
“No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance… ” 20 U.S.C. § 1681(a)”
The purpose of Title IX is to protect students from sexual discrimination, harassment, violence and misconduct, retaliation and other behaviors – in America. .
Clery Act for higher education and the Violence Against Women Act (VAWA). When it comes to sending students to abroad for academics, sports, or cultural immersion those laws fail to shine lights on the dark side of student abroad experiences or safeguard their well-being. Some students are dangerously stepping into some blind spots. There’s work to be done to make sure students get the education they pay for and are safe from unwanted sexual contact or harassment when they are advancing their education abroad.
What’s the difference?
The Clery Act seemingly focuses on where students go and if the campus is owned or controlled by the school, while Title IX seemingly focuses on who is sending the student abroad according to NAFSA.
Title IX specifically refers to prohibiting discrimination based on gender, and sexual assault, harassment and violence falls under that umbrella. The Clery Act is all about disclosing crimes on campus affecting students – including sexual assault. The inclusion of the Violence Against Women Act (VAWA) added dating violence, domestic violence and stalking conditions. Learn more in this report detailing the differences between Title IX and Clery.
The simplest way to think about it is this:
Title IX: think “who,” not “where.” It’s all about activities that fall in the context of an educational program or activity.
The Clery Act: think “where,” not “who.” It’s all about where the incident takes place, and whether that place is affiliated with the higher learning institution.
When are students protected?
Title IX applies to all activities educationally related. Of course, the “where” is the thing when it comes to the Clery Act, and that can get muddy when it comes to studying abroad. The following locations abroad would be covered by the Clery Act in the case that an institution receives federal funding:
- All campuses of the institution
- Separate locations, designated by the institution, for organized program of study
- Designated campus property
Locations off campus are covered by the Clery Act if and only if they are:
- A building or property
- Owned or controlled by the institution
- Used in direct support of the institution’s educational purposes
- Frequently used by students AND
- Not within the same reasonably contiguous geographic area
Host families and hostels count under this ruling if and only if the institution has “significant control” of the space – for example, if the student has a separate entrance to her living quarters. It does not count in family homes where students and the host family use the same entrance.
There is no reporting obligation for public property and non-campus-owned property.
Here’s the rub: all that only applies for institutions that receive federal funding. If not, then neither Title IX nor the Clery Act apply to that institution. They still apply to the student’s home school, but unless it has a robust study abroad program and plenty of resources and procedures in place, reporting on sexual assault abroad can be complicated and even neglected. As summed up by this article on the McAllister Olivarius legal website:
“Congress did not explicitly state that Title IX applies abroad, which is usually required for a law to be given extraterritorial application. However, the fact that study abroad programs are extensions of a U.S. university experience, with tuition (usually) paid as usual to the home university, academic credit being awarded, and staff reporting back to the home university, give these programs a high likelihood of being subject to Title IX.”
What’s the danger?
The loopholes in Title IX and the Clery Act are actually big enough to cause a lot of students to slip through the cracks. In many ways, reporting on and responding to assault abroad is new territory that hasn’t been entirely defined or armed with the right resources.
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