In April of this year, the International Ombudsman Association solicited a legal memorandum from a highly respected law firm—WilmerHale—on the issue of Ombuds confidentiality in the cases implicating Title IX and the Clery Act. Title IX is the federal law that prohibits gender discrimination at education institutions and the Clery Act requires education institutions to report crimes; both are implicated when students are victims of sexual assault and violence. Recent attention on campus rapes has raised concern about whether Ombuds can maintain their traditional role as a confidential resource. The IOA white paper aims to address this uncertainty.
The memo, which IOA has just made public, makes clear that a campus Ombuds following IOA Standards of Practice and Code of Ethics may be designated as a confidential resource and not a “responsible employee,” and would normally not be considered a “campus security authority” under the Clery Act.
The memo explicitly considers the relevant case law, statute, and regulatory guidance, including the Department of Education’s 2011 Dear Colleague Letter, and the 2014 First Report of the White House Task Force to Protect Students From Sexual Assault: “Not Alone.”
The memo was authored by prepared by Bruce Berman, WilmerHale’s General Counsel and head of the Firm’s Education Practice. According to IOA, Berman regularly counsels colleges and universities on Title IX and Clery Act issues, and has extensive experience representing higher education institutions in the area of campus sexual misconduct. (IOA WilmerHale Memo; IOA News; WilmerHale Bio.)
Related: Other Ombuds Blog posts related to Title IX, especially IOA Compiles Title IX Resources.