Clery Act: Today and Tomorrow
An Overview of the Act, the 2013 Amendments, and Compliance Challenges
Elizabeth Eynon-Kokrda
EEKLegal, LLC
eekokrda@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
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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 noncampus 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
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Larceny – Theft
Simple Assault
Intimidation and
Destruction Damage or Vandalism of Property
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Race
Gender
Religion
Sexual Orientation
Ethnicity
Disability
Gender Identity (2013)
National Origin (2013)
• Reported by Category of Prejudice:
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:
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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 turnaround 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 –
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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.