Clery’s October 1 Deadline Has Passed. What Now?
Pursuant to the Clery Act, institutions of higher education participating in Title IV programs are required to publish and distribute an Annual Security Report (and an Annual Fire Safety Report if the institution has on-campus student housing) by Oct. 1 each year. The report must include 50+ statements of policy, procedure, and programming, and statistics for certain reported crimes for the past three calendar years.
Consequences of Noncompliance
Failure to publish and distribute an ASR by the deadline, to address all compliance requirements within the report, or to adequately meet other Clery-related obligations (e.g., issuing timely warnings and maintaining a daily crime log) can result in reputational damage and monetary fines. On April 20, 2017, the U.S. Department of Education (ED) issued a final rule that, among other things, raised the amount of Clery fines from $35,000 to $54,789 per violation (for violations occurring Nov. 2, 2015 or later).
While most administrators are aware of Penn State’s multi-million dollar fine for Clery noncompliance in 2016, other less prominent institutions have also received significant fines. For example, the University of Jamestown, a North Dakota school with a student population of under 1,000, was recently issued a fine letter in the amount of $210,000.
An institution won’t randomly be fined for Clery noncompliance out of the blue; rather, fines are imposed after a lengthy auditing process. Commonly, an institution’s Clery compliance is evaluated from a high-level as part of a general Title IV program review conducted by ED, with Clery-related issues being the basis for a more focused Clery program review in the 18 to 24 months that follow the resolution of the general program review. Clery reviews can also come without a prior general program review if ED receives a complaint or other information suggesting noncompliance.
A Clery program review, which will look back several years at an institution’s compliance, involves a campus visit from representatives of ED’s Clery Division to analyze documentation and meet with key officials. Months (or even years) after the initial phase of the review, ED will issue a preliminary report that identifies compliance deficiencies and give an institution 60 calendar days to respond. After considering the institution’s response, ED will issue a final report, followed by any fines that will be imposed.
The trap that institutions fall into with Clery compliance is assuming everything is under control, whether it is because ED has never conducted a Clery review at that school, there aren’t many security issues on campus or crimes reported, there is the general thought by administrators that “someone in the security department has Clery handled,” and/or there are just too many other things going on to give Clery adequate attention. This mindset leaves an institution scrambling when ED comes knocking at the door. At this point, it is too late.
Even though the Oct. 1 deadline has passed for 2017, there are still things you can be doing now to enhance Clery compliance.
- Ensure your institution’s recently-issued ASR meets compliance standards. The Handbook for Campus Safety and Security Reporting (commonly referred to as the “Clery Handbook”) is ED’s key guidance on the Clery Act. It is imperative that those preparing the ASR are familiar with this document, and, because the Clery Handbook is 265-pages long and often difficult to navigate, having legal counsel review the report may also be prudent. Pages 9-10 and 9-11 of the Clery Handbook describe how you should correct and re-distribute an ASR that has already been published.
- Consider whether your institution has any “separate campuses.” One area that gives institutions trouble is the Clery concept of a “separate campus.” For Clery purposes, a separate campus is a site that:
- Your institution owns or controls;
- Is not reasonably geographically contiguous with the main campus;
- Has an organized program of study (i.e., courses leading to a degree, certificate, or other recognized credential); and
- Has at least one person on site acting in an administrative capacity (it does not have to be a high-level administrator nor does the administrator have to be at the site full-time).
This definition was clarified in the 2016 update to the Clery Handbook, and many institutions have discovered that, for Clery purposes, they have more campuses than originally thought. The ramification of this is significant, as every campus is required to independently comply with all Clery Act requirements. Thus, every campus should have its own ASR; or, in the alternative, an institution can publish a single ASR covering all campuses as long as the report appropriately distinguishes between the campuses where there are differences in policy, procedure, and programming.
- Begin planning for the collection of 2017 crime statistics. An institution’s 2018 ASR will include crime statistics for the past three calendar years. 2015 and 2016 statistics should have already been collected, but you will need to collect statistics for 2017. Statistics are to be collected from campus security authorities (CSAs) and local law enforcement agencies with jurisdiction over the institution’s Clery Geography. In order to ensure information about crimes is being reported by CSAs, it is important for institutions to take steps to ensure that CSAs know (1) that they are CSAs, (2) what their obligations are as CSAs, and (3) to whom crime reports should be made. In addition, early each calendar year, institutions should consider contacting CSAs to have them certify whether they received any crime reports in the previous calendar year. As it relates to requests to local law enforcement agencies, it is best practice to send an email and/or letter to each agency to ensure such requests are documented. ED will ask for such documentation during a Clery program review. Also, in order to give these agencies adequate time to respond, consider making the requests fairly early in 2018.
Hayley Hanson is chair of the education law practice at Husch Blackwell and advises institutions on a full range of compliance and litigation matters. She also helped create the Clery Compliance Toolset, an online tool that helps colleges and universities navigate Clery Act requirements. She can be reached at email@example.com.
Ben Irwin is an attorney at Husch Blackwell and concentrates his practice on compliance and governance issues confronted by institutions of higher education. He can be reached at firstname.lastname@example.org.