Expect Larger, Faster Clery Act Fines

U.S. Department of Education HeadquartersIn the most significant Jeanne Clery Act enforcement action in several years, the U.S. Department of Education last week notified the University of Montana that they intend to fine them nearly $1 million for violations of the campus crime reporting law occurring between 2012 and 2015. This would be the second largest fine after the $2.4 million fine paid by Penn State in 2016. It is also the first set of fines issued for violations of the 2013 Campus SaVE Act/VAWA amendments to the Act.

While not the final word as Montana has announced they will appeal, the fine notice offers important indications about how the Department will be handling Clery Act fines in the future. The action suggests that fines will be larger and issued faster going forward.

The Department is now issuing significantly larger fines of up to $55,907 per violation as a result of indexing for inflation under the Inflation Adjustment Act. Clery Act fines were originally $25,000 and remained there from 1990 to 2002. The law, however, now calls for annual increases. Currently violations that occurred prior to November 3, 2015 are subject to $35,000 fines while those that occurred on or after that date are subject to the higher $55,907 penalty, which was set in January.

Consistent with administrative decisions issued by Education Secretary Arne Duncan in 2012, the Department is imposing the maximum penalty for each individual incident of violent crime omitted from reporting, while imposing lesser amounts for not reporting non-violent crimes. For example, 2 omitted incidents of stalking in 2015 yielded a total $111,814 (2 X $55,907) fine compared with $8,500 for 1 excluded burglary.

The annual indexing for inflation of fines, and the imposition of fines for each crime that goes unreported with the maximum imposed for any violent crime left out of reporting are three major factors indicating that Clery Act fines will likely be larger going forward.

Also, following a ruling by an administrative law judge in 2016 that interpreted a longstanding law limiting the imposition of federal civil penalties to 5 years after the violation, the Department is now also subject to this “statute of limitations”. Following this decision, for example, this enforcement action initiated in September of 2018 could only go back as far as the 2013 annual security report, which was due on October 1st of that year.

The requirement that the Department be limited to 5 years to impose fines will require that they move faster than they have the past, with some investigations taking as long as ten years and imposing fines as late as two years after investigations have been resolved. Institutions could still be found in violation, and required to correct past errors, but after 5 years they wouldn’t face fines.

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