Keeping up with the Clery Act: Staying in Compliance with Campus Security Requirements

1. Keeping up with the Clery Act:
Staying in Compliance with
Campus Security Requirements
Dennis Cariello & Patricia Edelson
December 4, 2012

2. Disclaimers
• The contents of these materials and the accompanying
discussion do not constitute legal or regulatory advice.
• No party should act or refrain from acting on the basis of any
statements made today without seeking individualized,
professional counsel as appropriate.
• These materials and the accompanying discussion are primarily
focused on certain aspects of the Clery Act and are not intended
to be comprehensive of all Clery Act requirements applicable to
all educational agencies and institutions.
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3. Today’s Topics
• Background
• What Does the Clery Act Require?
• Crime Reporting
• Campus Geography
• Campus Security Authorities
• Annual Campus Safety Report
• Required Policies
• Warnings & Notifications
• Crime Logs
• Other Topics
• Drug Free Schools
• Missing Persons
• Fire Safety
• Questions
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4. Background
• In 1986 Jeanne Clery, a freshman at Lehigh University,
was raped and murdered in her campus residence hall
bedroom. Her killer was another student.
• Her school did not inform students about 38 violent
crimes that had taken place on campus in the three years
preceding her murder.
• In 1990, on the belief that Ms. Clery
would have been more cautious if
she had known about other violent
crimes at Lehigh, Congress
required higher education
institutions to report crime statistics
to current and prospective students
and employees.
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5. Background
• Jeanne Clery Disclosure of Campus Security Policy and
Campus Crime Statistics Act (Section 485(f) of the higher
Education Act) (20 U.S.C. § 1092(f); 34 C.F.R. § 668.46).
• All postsecondary institutions that participate in Title IV
programs must comply (34 C.F.R. § 668.14(c)(2)).
• Federal Student Aid (FSA) enforces the Clery Act (the FBI’s
Criminal Justice Information Service (“CJIS”) Audit Unit
often assists on program reviews).
• Possible consequences of review findings:
• Fines - up to $35,000 per offense (recently increased)
• L/S/T of Title IV eligibility; denial of recertification or revocation of
Program Participation Agreement
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6. Background
**The action against “Ashford University” took pace when it was Mt. St. Clare College
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7. Background
• This past summer, the Secretary of Education decided In
the Matter of Tarleton State University, holding that the
Department could impose a separate fine for each
violation of the Clery Act.
• For example, if an institution failed to report five crimes in
a Campus Security Report, each omitted crime was its
own violation (rather than one violation for the whole
report).
• Given the larger context associated with some very high
profile cases (Virginia Tech, Penn State), it is incumbent
on you to make sure the Campus Security requirements
are fully met at your institution.
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8. What Does the Clery Act Require?
• The Clery Act requires postsecondary institutions to:
• Collect crime data, classify crimes, and report crime statistics to
the Department.
• Publish and distribute an annual Campus Security report by
October 1st of each year, inclusive of policy statements and crime
statistics for the current year as well as the 3 previous years.
• Inform prospective students and employees about the Campus
Security Report on an annual basis.
• Issue timely warnings and emergency notifications to the campus
of crimes that threaten safety.
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9. What Does the Clery Act Require?
• The Clery Act also requires:
• Institutions with campus police or security departments to:
• Support and keep an up-to-date daily log of all reported crimes
that is available for public inspection.
• Institutions with on-campus student housing facilities to:
• Disclose missing student notification procedures that pertain to
students residing in those facilities.
• Comply with fire safety requirements.
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10. What Does the Clery Act Require? –
Crime Reporting
• The Clery Act Requires Institutions to Report nine
Categories of Crime:
• Criminal homicide
• Sex offenses (forcible and non-forcible)
• Robbery
• Aggravated Assault
• Burglary
• Motor vehicle theft
• Arson
• Arrests & disciplinary referrals for violations of drug, liquor, and
weapons laws
• Hate Crimes
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11. What Does the Clery Act Require? –
Crime Reporting
• Crimes must be reported as Hate Crimes if the victim was
intentionally selected because of the victim's actual or
perceived race, gender, religion, sexual orientation, ethnicity,
or disability.
• Institutions must classify crimes based on the Federal Bureau
of Investigation’s Uniform Crime Reporting Handbook (UCR).
• When reporting crimes, do not differentiate between attempted
and completed crimes.
• The only exception to this rule applies to attempted murder when
the victim does not die. These incidents would be classified as
aggravated assaults rather than murders.
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12. What Does the Clery Act Require? –
Crime Reporting
• Helpful Tips:
• The only non-forcible sex offenses are incest & statutory rape
• Burglary is unlawful entry of a structure to commit a felony or a
theft. Theft from a motor vehicle is larceny, which is not a Clery
crime
• Simple Assault (without a weapon or causing severe bodily injury)
vs. Aggravated Assault (typically with a weapon or inflicts severe
bodily injury)
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13. What Does the Clery Act Require? –
Crime Reporting
• Hierarchy Rule:
• When multiple offenses occur in the same time and place, only
count the most serious offense.
• Use the FBI’s UCR Hierarchy Rule
• Exceptions (Arson & Hate crimes):
• Always count arson regardless of any other offenses committed during
the same incident (i.e.: Murder/Non-negligent manslaughter and arson)
• Count all offenses committed in a multiple offense incident that are
bias-motivated (i.e., hate crimes)
• “Group A” hate crimes are disclosed in both the general offenses
category and in the hate crime category (http://www.fbi.gov/about-
us/cjis/ucr/hate-crime/hcguidelinesdc99.pdf, at pages 11-13)
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14. What Does the Clery Act Require? –
Campus Geography
• Schools must report statistics only for crimes that occur
within your Clery Geography:
• On-campus Geography
• Public Property
• Non-campus Buildings or Property
• Separate Campus
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15. What Does the Clery Act Require? –
Campus Geography
• On-Campus Geography
• Includes buildings and properties that:
• Your institution owns or controls
• Are reasonably contiguous to one another, and
• Directly support or relate to the institution’s educational purposes
• On-campus geography also includes buildings and properties
that:
• Your institution owns but does not control
• Are within your campus, or reasonably contiguous to it
• Are frequently used by your students, and
• Are used to support the institution’s educational purposes
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16. What Does the Clery Act Require? –
Campus Geography
• Public Property
• “All public property, including thoroughfares, streets, sidewalks,
and parking facilities, that is within the campus, or immediately
adjacent to and accessible from the campus”
• Public Property Examples: Pages 18-24 – The Handbook for
Campus Safety and Security Reporting (revised February 2011)
http://www2.ed.gov/admins/lead/safety/handbook.pdf
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17. What Does the Clery Act Require? –
Campus Geography
• Example 2 – Public Parking Lot
• Example 1 – Sidewalk, Street, Sidewalk
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18. What Does the Clery Act Require? –
Campus Geography
• Non-campus Buildings or Property
• Includes any location (except a separate campus) that:
• Is owned or controlled by the institution
• Supports or is used for the institution’s educational purposes
• Is frequently used by students, and
• Is not considered part of the core campus
• Also includes any building or property that is owned or
controlled by a student organization if the organization is
“officially recognized” by your institution.
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19. What Does the Clery Act Require? –
Campus Geography
• Separate Campus: Consider an additional location a
separate campus if it meets all of the following criteria:
• Your institution owns or controls the site
• It is not reasonably geographically contiguous with the main
campus
• It has an organized program of study, and
• There is at least one person on site acting in an administrative
capacity
• Institutions must comply with all of the Clery Act and fire
and safety-related requirements for each campus
• Institutions often fail to report statistics for separate campuses
• Each campus must have an Annual Security Report (“ASR”)
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20. What Does the Clery Act Require? –
Campus Security Authorities
• The Clery Act requires institutions to collect crime reports
from “campus security authorities.”
• A “campus security authority” (“CSA”) includes four groups
of individuals and organizations associated with an
institution.
• A campus police or security department
• Other individuals with responsibility for campus security
• Any individual or organization specified in the campus security policy
as one to whom students and employees should report crimes
• An official (a person with authority or a duty to take action) who has
significant responsibility for student and campus activities, including,
but not limited to, student housing, student discipline and campus
judicial proceedings
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21. What Does the Clery Act Require? –
Campus Security Authorities
• A official’s function, and not her title, determines whether
she is a CSA.
• A faculty member who does not have any responsibility for student
and campus activity beyond the classroom is NOT a CSA
• CSAs must report good faith allegations of Clery Act crimes to
the designated office or official.
• Reports are made to the official/office designated by the school
to collect crime report information.
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22. What Does the Clery Act Require? –
Campus Security Authorities
• CSAs are not responsible for:
• determining authoritatively whether a crime took place
• apprehending the alleged perpetrator, or
• convincing a victim to contact law enforcement if the victim
chooses not to do so
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23. What Does the Clery Act Require? –
Campus Security Authorities
• For Clery Act purposes, a crime is “reported” when it is brought
to the attention of a CSA by a victim, witness, other third party,
or even the offender.
• It doesn’t matter whether the individuals involved in the crime, or
reporting the crime, are associated with the institution
• Be sure to document as much detail as possible and try to
answer all relevant questions (who, what, when, where, etc.).
• Institutions should create forms or guidelines to assist CSAs in
documenting relevant information
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24. What Does the Clery Act Require? –
Annual Campus Security Report
• You are required to collect, classify, and count crime reports
and crime statistics in your Annual Security Report (“ASR”).
• The report must include statistics for the three most recent
calendar years concerning any occurrence on campus, in or
on non-campus buildings or property, and on public property
that are reported to local police agencies or to a campus
security authority.
• The ASR must be submitted annually to the Secretary, by
the date and in a form specified by the Secretary, as
required by §§668.46(c) and 668.49(c).
• ASR must be comprehensive, and all in one place (one link).
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25. What Does the Clery Act Require? –
Required Policies
The Annual Report should include policies related to:
• Procedures to report criminal actions or other emergencies
occurring on campus
• Security of and access to campus facilities
• Campus law enforcement
• The frequency of programs designed to inform students and
employees about campus security procedures and practices and
to encourage students and employees to be responsible for their
own security and the security of others
• Programs designed to inform students and employees about crime
prevention
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26. What Does the Clery Act Require? –
Required Policies
• The monitoring and recording through local police agencies of
criminal activity by students engaged at off-campus locations of
student organizations officially recognized by the institution.
Including student organizations with off-campus housing facilities
• The possession, use, and sale of alcoholic beverages and illegal
drugs and the enforcement of State underage drinking laws and
Federal and State drug laws
• Any drug or alcohol-abuse education programs
• The institution’s campus sexual assault programs to prevent sex
offenses, and procedures to follow when a sex offense occurs
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27. What Does the Clery Act Require? –
Warnings & Notifications
Must disclose policies for making timely warnings to members of
the campus community regarding the occurrence of reportable
offenses on their Clery geography.
• Include the following elements:
• Circumstances for which a warning will be issued
• Individual or office responsible for issuing the warning
• Manner/mode of communication in which warning will be
disseminated
Required to have a policy for both timely warnings and
emergency notifications.
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28. What Does the Clery Act Require? –
Warnings & Notifications
• Timing
• Issue timely warning as soon as pertinent information is available -
no 24-48 hour standard
• Initiate emergency notification procedures immediately upon the
confirmation that a dangerous situation or emergency exists or
threatens
• Not required to send out a timely warning and an emergency
notification for the same event
• But must provide adequate follow-up information as appropriate
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29. What Does the Clery Act Require? –
Warnings & Notifications
• Purpose is to alert the campus community to certain crimes in
a manner that is timely and will aid in the prevention of similar
crimes
• “Timely” is not defined
• Means that a warning should be issued as soon as the pertinent
information is available
• The warning must be issued for Clery Act crimes that are
considered by the institution to represent a serious or
continuing threat to students and employees.
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30. What Does the Clery Act Require? –
Warnings & Notifications
Emergency Notification Timely Warning
• Any significant emergency or • Just relates to Clery crimes.
dangerous situation.
• Triggered by an event currently • Triggered by crimes that have
already occurred but represent
occurring on or imminently an ongoing threat.
threatening the campus.
• Applies to your campus. • Applies to your “Clery
Geography.”
• Initiate procedures immediately
• Warning issues as soon as the
upon confirmation. pertinent information is available.
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31. What Does the Clery Act Require? –
Crime Logs
• If you maintain a campus security department you must
maintain a written, easily understood daily crime log.
• Log must record, by the date the crime was reported, any
crime that occurred on campus, on a non-campus building or
property, on public property, or within the patrol jurisdiction of
the campus security department
• This log must include:
• The nature, date, time, and general location of each crime
• The disposition of the complaint, if known
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32. What Does the Clery Act Require? –
Crime Logs
• Crime log for the most recent 60-day period must be
open to public inspection during normal business hours.
• Older logs must be available, upon request, within two
business days.
• Must be accessible on site (electronic or written)
• Must be available without payment or written request
Institutions must make an entry or an addition to a log entry
within two business days, unless that disclosure is prohibited by
law or would jeopardize the confidentiality of the victim.
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33. What Does the Clery Act Require? –
Crime Logs
• May withhold information if there is clear and convincing
evidence that the release of the information would:
• Jeopardize an ongoing criminal investigation or the safety of an
individual
• Cause a suspect to flee or evade detection, or
• Result in the destruction of evidence
• Must disclose any information withheld once any adverse
effect is no longer likely
• Schools must archive log for seven years
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34. Other Topics -
Drug Free Schools
• You are required to comply with the Drug-Free Schools
and Communities Act (DFSCA).
• The DFSCA and Part 86 of the Department’s General
Administrative Regulations require a school to certify that it
has developed and implemented a drug and alcohol abuse
education and prevention program (DAAPP).
• The program must be designed to prevent the unlawful
possession, use, and distribution of drugs and alcohol on
campus and at recognized events and activities.
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35. Other Topics -
Drug Free Schools
On an annual basis, schools must distribute the DAAPP to
all current students and all current employees:
• standards of conduct prohibiting the possession, use, and
distribution of drugs and alcohol
• possible sanctions for violations of Federal, state, and
local drug and alcohol laws as well as sanctions for
violation of institutional policies
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36. Other Topics -
Drug Free Schools
• Also include:
• health risks associated with the use of drugs and alcohol
• information on counseling, rehabilitation, and treatment
programs, and
• a clear statement that the school will impose sanctions on
students and employees who violate drug and alcohol
laws, ordinances, and/or institutional policies
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37. Other Topics -
Drug Free Schools
• Biennial Review
• Each school must conduct a biennial review to determine
the effectiveness of its DAAPP and to ensure consistent
enforcement of applicable laws, ordinances, and institutional
policies against violators
• The biennial review report and supporting documents must
be maintained by the school and made available to the
Department upon request
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38. Other Topics -
Missing Persons
• If your institution has any on-campus student housing
facilities, you must disclose missing student notification
procedures.
• Requires that an institution has procedures in place that it
will follow if any student residing in on-campus student
housing is determined to be missing for 24 hours.
• When a student who lives in on-campus housing is
determined to have been missing for 24 hours, you have
only 24 hours after receiving the report to initiate specific
notification procedures.
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39. Other Topics -
Fire Safety
• If your institution has any on-campus student housing
facilities, you must:
• Disclose fire safety information
• Maintain a log of all reported fires that occur in those on-campus
student housing facilities
• Publish an annual fire safety report that contains fire safety
policies and fire statistics for each of those facilities, and
• Submit the fire statistics from the fire safety report annually to ED
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40. Other Topics -
Fire Safety
• Fire is defined as any instance of open flame or other
burning in a place not intended to contain the burning or
in an uncontrolled manner.
• Includes all fires that meet the definition regardless of
size, cause, or whether the fire results in injury, death, or
property damage.
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41. Questions?
Dennis Cariello Patricia Edelson
212-335-4816 212-776-3737
Dennis.Cariello@dlapiper.com Patricia.Edelson@dlapiper.com
educounsel@twitter.com
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