Community College Districts Student Housing Projects – Anti-Discrimination Laws And Regulations

While a student housing project brings many legal considerations during the planning and construction phase, community college districts must also consider numerous state and federal anti-discrimination laws that apply to the operation of student housing after construction is complete.

Title IX of the Education Amendments of 1972 (Title IX)

• Title IX requires a district that receives federal funding to operate its education programs or activities free of discrimination based on sex, including sexual harassment based on gender, sexual orientation, and gender identity.
• Title IX applies to every aspect of a district’s educational programs or activities, including course offerings, counseling, financial assistance, student health and insurance benefits, housing, the marital and parental status of students, physical education and athletics, and employment.
• If the district receives a complaint of sexual harassment in violation of Title IX, it must follow its grievance process, which includes an investigation and hearing. Additionally, even if a complaint is not filed, the district should contact the students impacted by sexual harassment or other sexual misconduct to discuss the availability of supportive measures tailored to assist the impacted students to continue their studies and activities. A district cannot take punitive action in providing supportive measures. Rather, the district’s supportive measures may include individualized services reasonably available that are non-disciplinary and do not unreasonably burden the other party. Supportive measures may include changes to housing location or increased security and monitoring of student housing facilities.

What this means: Student housing is part of a district’s education program or activity, as described in Title IX regulations. Accordingly, a district may not, on the basis of sex, apply different rules or regulations, impose different fees or requirements, or offer different services or benefits related to housing. A district may provide separate housing on the basis of sex if such housing is both proportionate in quantity to the number of students of each sex applying for the housing and comparable in quality and cost to the student. Furthermore, a district must respond to complaints of sexual harassment in its student housing facility using its policies and procedures on gender-based harassment.

Jeanne Clery Disclosure of Campus Security Policy and Campus Crime Statistics Act (Clery Act)

The Clery Act requires districts to report campus crime data, support victims of violence, and publicly outline the policies and procedures they have put into place to improve campus safety. Although districts are likely already familiar with many of Clery Act requirements, districts that provide on-campus housing facilities have additional responsibilities.

Specifically, the Clery Act requires that districts that maintain on-campus housing facilities establish a missing student notification policy and related procedures. The missing residential student notification policy applies when a student lives in on-campus housing, is reported missing, or there is concern that they have not been seen in their residence room for over 24 hours.

Additionally, the Clery Act requires districts to disseminate a public annual security report (ASR). Districts must include statistics for specific categories of crimes that occur in specific geographic areas including anywhere on-campus and in on-campus student housing.

The Clery Act also designates members of the campus community as campus security authorities (CSAs). Examples of CSAs include a dean of students who oversees student housing or a student resident advisor. When these individuals become aware of a crime that occurred on or around campus, they have an obligation under the Clery Act to report the information to a local law enforcement agency.

What this means: Districts should adopt policies and procedures regarding missing student notifications pursuant to the Clery Act requirement. Districts should review their annual security reporting processes to ensure it accurately reflects any Clery-reportable offenses that occurred in new on-campus housing. Districts should also identify CSAs with oversight of the student housing facility and ensure they understand their reporting obligations.

California Education Code

• The California Education Code requires certain district employees to report allegations of sexual harassment to the Title IX Coordinator promptly. Specifically, the Education Code Section 62281.8 requires that “responsible employees” which include residential advisors, housing directors, coordinators, or deans, and other employees report allegations of sexual harassment to the district’s Title IX Coordinator.
• The California Education Code requires a district that maintains any on-campus student housing facility to provide annual training to residential life student and nonstudent staff, or their equivalent, on how to handle, in a trauma-informed manner, reports made to them of sexual harassment or sexual violence, and situations in which they are aware of sexual harassment or sexual violence, in student residential facilities.
• The California Education Code also prohibits discrimination and harassment in employment or education by any educational institution receiving or benefiting from state funds.

What this means: Districts should ensure that all student housing employees are aware of their reporting obligations and participate in compliant anti-harassment training annually. Districts should ensure that their policies and procedures regarding housing are compliant with non-discrimination requirements found in state law.

The California Fair Employment and Housing Act (FEHA)

• FEHA prohibits discrimination, harassment, and retaliation in the workplace. FEHA protects any district employee, including student workers, assigned to manage the student housing facility from the unlawful behavior of other employees, students, or vendors.
• FEHA requires that a district take all reasonable steps necessary to prevent discrimination and harassment from occurring in the workplace, including a student housing facility.

What this means: Districts must follow their policies and procedures to respond to complaints of discrimination, harassment, or retaliation from all employees.

LCW’s Business and Facilities Practice group have a deep bench of experts who can help community college districts navigate compliance with federal and state laws and regulations governing student housing, including providing required training and preparing missing student, anti-discrimination, and harassment policies and procedures.