Clery Act: Today and TomorrowAn Overview of the Act, the 2013 Amendments, and Compliance Challenges

Elizabeth Eynon-KokrdaEEKLegal, LLCeekokrda@eeklegal.com

A bit of history…• In 1986, 19-year old Jeanne Clery was raped

and murdered in her Lehigh University dorm room. Her assailant was a fellow student she didn’t know.

• Her parents, alarmed by the lack of information provided to parents and students about the number of violent incidents on campus, took the issue to Capitol Hill.

• After several years of lobbying, federal law was passed, effective in 1991, and later named the Jeanne Clery Act.

What, in essence, does the Clery Act require?

• Colleges and Universities must:▫Disclose security policies▫Keep a public crime log (if the IHE has a police or

security dept)▫Publish annual security report (3 yrs of stats plus

policies)▫Provide timely warnings to students and employees

about a crime posing an immediate or ongoing threat to them – security alerts

• The law also provides victim rights for campus sexual assault and requires the federal DOE to collect and disseminate crime statistics

Recent Updates to the Clery Act:

• In 2008, amendments were added to the law, including updated emergency response and warning procedures and hate crime reporting standards.

• In 2013, the Violence Against Women Act (VAWA) was reauthorized and part of that reauthorization included the Campus Sexual Violence Elimination Act, which amends the Clery Act and adds additional rights to campus victims of sexual violence, dating violence, domestic violence, and stalking. ▫ The regulations for this amendment are being finalized.

The law takes effect right now (this spring) and will be part of the 2014 reporting.

Past and Current Challenges•The Annual Security Report (ASR)

requirements are very complex. ▫“Part I” crimes, hate crimes and arrests for

referrals for drug and alcohol and weapons reportable if they occur within 4 geographic areas.

▫The status of the victim or perpetrator (student, faculty, staffer, guest) is not relevant to reporting.

▫Some crimes are not reportable even if they occur in the geographic locations (larceny, simple assault that isn’t part of a hate crime, driving while intoxicated)

Reportable Crimes

•Reportable in the year in which the institution learned of them, even if they occurred in a different year▫On Campus▫On Campus Residential▫Non Campus and▫Public Property Adjacent to and Accessible

From Campus

On Campus

•any building or property owned or controlled and used by the institution within the reasonably contiguous area of campus;

• includes foundation-owned property; • includes shared campuses; • includes residence halls controlled by 3rd

parties•branch campuses and separate campuses

require their own separate ASR

On Campus Residential

•Student housing facilities are a reporting subset of “On Campus” and reportable incidents that occur in residence halls bust be reported twice. Each incident is reported once in the On Campus category and once in the On Campus Residential category.

Public Property• Thoroughfares, streets, sidewalks and parking facilities

(eg public property within the campus or immediately adjacent to and accessible from campus) crimes are reportable

• Also includes roads or bike paths running through campus that are accessible from campus (so sealed highways without and entrance or exit would not be included).

• A road owned by the institution but open to the public is considered On Campus

• If the institution borders a waterway, public property extends one mile out to the water; one mile is also the suggested rule for reporting areas with other public property (eg bordering a public park).

Non Campus• There are 2 separate and unrelated definitions of non-

campus crimes, and it requires an analysis of what programs an institution is running outside of the main On Campus property, and what the ownership or control status of those locations is each year.▫ Definition A: property owned or controlled by a student

organization that is officially recognized by the institution

▫ Definition B: owned and controlled by the institution, in direct support of or related to the educational purposes of the institution, frequently used by students, but NOT within the reasonably contiguous geographic area of the institution.

Examples of Non-Campus• Research facilities• Building rented for instruction• Vessels owned by institutions carrying students

participating in institutional programs• Locations where classes are offered (you lease a

floor of a building for a once-a-week class between 6-10 pm; report all “Clery Act” crimes that occur in that space plus other areas of the building that your students or employees must use to access the space during that time frame

• Study abroad and distance programs: depends on ownership and control analysis

Reportable Crimes (“Part I”)•Murder and non-negligent manslaughter•Negligent manslaughter•Forcible sex offenses (forcible rape, sodomy,

sex assault with an object, forcible fondling)•Non-forcible sex offenses (incest and

statutory rape)•Robbery•Aggravated Assault•Burglary•Motor Vehicle Theft

The Reporting Hierarchy

•If an individual commits more than one of the Part I crimes in a single incident, the institution only counts the highest level crime.

•Definitions of all crimes except sex offenses are from the FBI’s Uniform Crime Reporting (UCR) definitions

•Sex Offenses are defined from the UCR National Incident Based Reporting System (UCR-NIBRS).

•Date Rape counts as a forcible offense.

Drug, Alcohol, Weapons, and Discipline Referrals•Only report violations of state law – not just

reports to campus officials. •Definitions come from state law. •When dealing with non-campus incidents,

multiple jurisdictions will have to be considered (multiple states, international law, etc)

Example: marijuana possession (Denver and Amsterdam are different than Nebraska)

•Only disciplinary referrals for violations of law (not campus policy) are included in the ASR

Exceptions to the Hierarchy

•Hate Crimes are reported separately, even if they are accompanied by a higher level of crime, and are reported in two areas (Part I and Hate Crime)

•Arson counts separately, e.g . if a person is killed as a result of arson, a college counts one homicide and one arson

Hate Crimes• All of the above crimes PLUS

▫ Larceny – Theft▫ Simple Assault▫ Intimidation and▫ Destruction Damage or Vandalism of Property

• Reported by Category of Prejudice:▫ Race▫ Gender▫ Religion▫ Sexual Orientation▫ Ethnicity▫ Disability▫ Gender Identity (2013)▫ National Origin (2013)

The Hate Crime of Intimidation

•To be a victim, one does not have to be the intended target of the offender. For example, if there are racist slurs on the bathroom wall, and an individual reports them, if the reporter says he or she was intimidated by the slurs, this is reportable. If the person says they were not intimidated, just reporting, then it does not count as a hate crime of intimidation.

How does the Institution know?• Campus Security- not just what we might think

▫ Mandatory Clery Act Reporters Campus policies and security department Any individual with security responsibilities, like parking lot security

or student escorts Any individual designated by the institution as someone to whom

crimes should be reported Any individual with significant responsibility for student and campus

activities – housing, student discipline, campus judicial proceedings – who has authority to take action or respond▫ Examples include Deans of students who oversee housing, a student

center, or student extra-curriculars; directors of athletics or team coaches or trainers; faculty advisors to student organizations; student resident advisors; students who monitor access to residence halls

• Local law enforcement Institution must make a reasonable good faith effort to collect the

information

To be included in the ASR

•If a CSA receives a good faith report of a reportable crime occurring in one of the four geographic areas, is must be included. No formal police report or investigation is required.

•Reporting individuals may remain confidential, but the statistics of the crime must be reported, including the geographic location, the general facts and timeframe, and the number of victims/assailants

Specific Exclusions to CSAs

•Professional and pastoral counselors acting within the scope of their license or certification at the time they receive a report of a crime are not required to, but may, forward a report of the crime. Interns and students practicing with the pastoral or professional counselors are also exempt.

Additional Current Challenges

•All institutions must have policies on disclosure, reporting, security, law enforcement, and education related to the Act, and these policies must be included in the ASR.

•There are numerous required policies on what we’ve discussed, plus policies related to actions required by the Act, such as a Missing Student policy and procedures for what to do in such an instance.

Timely Warning and Emergency Notifications•For Clery crimes, whether or not the victims or

perpetrators are members of the campus community

•Policies for emergency response and evacuation ▫must have a plan, test procedures annually,

evaluate them and their effectiveness, and make them public

▫emergencies include extreme weather, earthquakes, outbreaks of meningitis, terrorist incidents, armed intruders, bomb threats, riots or civil unrest, and explosions

Distribution

•The ASR must be distributed to currently enrolled students and all employees (must be stand alone), and to prospective students and employees (an individual who has contacted the institution requesting information about admission or employment). ▫web pages are acceptable

Clery notifications• The Act requires Victim Notification (in

writing) about:▫Sanctions and protective measures▫Evidence preservation▫How to report the offense on and off campus,

and assistance with reporting▫Availability of protection orders▫ Interim remedies (changing of living, academic,

transportation, or working situations if requested and reasonably available)

▫Procedures for disciplinary proceedings

Clery notifcations, cont.

•Both the victim and perpetrator must be simultaneously notified (in writing) about:▫The outcome of any disciplinary

proceedings▫Procedures for appeal, if any▫Interim results▫When the results become final

Clery and FEPRA (refresher)• FERPA gives college students the right to control the disclosure

of their education records to others, inspect and review their own records and seek amendment of them

• FEPRA, in general, may not disclose personally identifiable education records or information from them to anyone other than the relevant student without consent unless there is a specific exception provided for in law

• The ASR does not require personally identifiable information• FERPA contains exceptions for referrals to law enforcement and

emergencies• Contact information under FERPA and Clery Act (and when it

may be disclosed) differs… BUT in general there isn’t too much tension between the two acts.

• Keep in mind that there are other laws implicating privacy (like defamation, libel, and HIPAA)

Clery and Title IX• Title IX also requires reporting of crimes and

incidents• Title IX covers gender discrimination and sexual

harassment and creates investigatory obligations and creation of “prompt and effective” remedies

• Title IX also has mandatory reporters• Under Title IX, if a school knows or reasonably

should know about harassment (including sexual violence) it must take immediate action to eliminate it, prevent its recurrence, and address its effects, even if the victim does not want to file a complaint.

Nebraska Child Abuse Laws

•Any person who is aware, or suspects, child abuse or neglect, including sexual assault, is to report it to law enforcement – child is defined as under 19. Failure to report is a criminal offense.

The (present) Future: VAWA and 2014

•New (2013) reportable incidents include dating violence, domestic violence and stalking

•What definitions to use when notifying students and when reporting is a bit confused (local law versus federal law)

•The ASR is likely to consider this a “Part III” i.e., separately reportable, and possibly reportable in multiple sections

How many times…

•Example: “Would-be girlfriend” stalks a male student for months, and in a show down at the dorms, screaming epithets at him about his sexual orientation, douses his room in gasoline and lights it, resulting in his death

Where is this reportable? Homicide, arson, residence homicide, residence arson, hate crime homicide, hate crime arson, hate crime residence homicide, hate crime residence arson, stalking homicide, stalking arson, etc.

The first ASR with the VAWA changes

• Effective October, 2014• April 1, 2014 was the final session of negotiated rulemaking for draft

regulations; DOE will then send it to negotiators for comment; draft regs then get a likely 45-day public comment period; final regs are expected Nov 1, 2014

• DOE states that if rulemaking isn’t completed, institutions are to make a good faith effort to comply - ie, include statistics for calendar year 2013

• Other challenges identified include the distinction between dating violence and domestic violence, whether or not hierarchy applies, and how to decide where stalking takes place (cyber-stalking?), the publication and policy requirements, and notification requirements

Enforcement• Solely DOE (no private right of action)• DOE hasn’t been considered strong enough in terms of

enforcement in the past, and is under pressure to investigate• Program reviews and fines have been increasing despite lack of

funding…

• The DOE conducts Clery Act audits▫ Audits require production of many documents in a short turn-

around time▫ The DOE comes to campus and interviews people as well as reviews

documents▫ There are preliminary findings which ought be responded to (PR

implications)• Penalties: up to $35,000 PER VIOLATION, and suspension from

participating in federal student financial aid programs.

Examples

• March 2011: Virginia Tech, despite having a good crisis plan and gathering a group to figure out how to notify students within one hour of the shooting crisis, didn’t follow its plan to the letter and was found deficient and fined $55,000.

• May 2013: Yale faces a fine of $165,000 for failing to report 4 forcible sex offenses, failing to include 7 required policy statements in its ASR, and failing to include crime statistics from Yale-New Haven Hospital in its data.

• Nov 2013: Lincoln U (Jefferson City, MO) to be fined $275,000 for failing to provide to sex assault victims with the outcome of campus disciplinary investigations and failing to include a statement of possible sanctions in disciplinary actions involving sex offenses in its ASR.

• Penn State hasn’t been finalized – their stats have changed significantly since Sandusky, which also is drawing attention …

“Most Dangerous College Campuses”

• Daily Beast publishes this – ▫U of WI, Stout▫Cal State – Bakersfield▫U of Louisville▫U of Connecticut▫Tennessee State▫Morgan State (MD)▫U of Central Arkansas▫Northern Illinois U▫U of San Francisco▫ Johnson & Wales U (RI)▫U of Alabama – Huntsville

And this just in…• On April 7, 2014 U.S Senators McCaskill (MO) and Gillibrand (NY)

released a bipartisan letter signed by 10 colleagues calling for new federal funding to investigate and enforce sexual assault laws at colleges and unversities.

• “I fear…we’re going to find systemic problems on our college campuses – including very low reporting due to lack of protections and resources…” (McCaskill)

• “For one in five young women an campuses across America, the college experience becomes their worst nightmare, as victims of sexual assault.” (Gillibrand)

• College campuses reported 5000 forcible sex offenses in 2012. OCR gets more than 10,000 complaints under Title IX, but has half the staff it had in 1980.

• The Clery Compliance Team has only 12 staff members to enforce the law at over 6,000 institutions, rendering them unable to investigate 63% of schools that failed to report crime statistics as required.

• Nearly 1/3 or campus sexual assault policies at 299 colleges surveyed do not fully comply with the Clery Act.

Recommendations• Understand the collaborative nature required in order to meet

requirements• Understand that acting in good faith isn’t enough• Understand reporting is complex: consider a compliance manager

and compliance coordinating committee (see Ohio state’s posted position for Compliance Director and Cler

• Understand emergency-communication best practices (for example, pre-written and pre-approved alerts)

• Collaborators are going to include police services, student affairs, student housing, athletics, the health center, faculty advisors, marketing and communications, and human resources (among others).

• Training of CSAs – at Penn State, there were over 3,000 persons who were CSAs and needed to learn reporting requirements.