The U.S. Department of Education (ED), on Friday, October 9, 2020, rescinded The Handbook for Campus Safety and Security Reporting, 2016 Edition. This step was taken as part of Education Secretary Betsy “DeVos’s commitment to reducing the regulatory burden on institutions”. In this post we’ll discuss the broadest impacts this will have on Jeanne Clery Act compliance going forward.
The practical implications for colleges and universities will mean greater flexibility coupled with additional responsibilities for making and documenting “reasonable” determinations regarding compliance. This will include, among other things, which locations crime statistics are reportable from and which personnel are obligated to report them. The expectation that institutions “justify and document” (as confirmed by the recent Title IX Rule, the Higher Education Act continues to require the retention of Clery Act records for 7 years) will be more important than ever.
The 2016 guidance, like prior editions from 2005 and 2011, offered institutions plain language guidance on how to comply with the campus safety reporting requirements of the Jeanne Clery Act as well as related alcohol and other drug and fire safety requirements. It was originally sought by campus public safety practitioners accustomed to having manuals from the FBI under their Uniform Crime Reporting (UCR) program. In 2003 Congress appropriated funding for and directed creation of the original edition which was published in 2005.
The 265-page document has now been replaced by a 13-page appendix to the Federal Student Aid Handbook that briefly summarizes many, but not all, statutory and regulatory requirements. Other than actual citations to statute or regulation it is non-binding, nor was the Handbook.
In the absence of the Handbook those statutes and regulations will be essential reading for practitioners responsible for compliance (all are available from our Compliance Hub as are archived copies of all editions of the Handbook for historical reference). The crime definitions used by the Clery Act are adapted from either the UCR program or the Violence Against Women Act. They are found in an appendix to the regulations or in one of three UCR handbooks.
The new guidance states “The Department will accept an institution’s reasonable interpretation of terms as long as those terms are defined clearly to individuals who review the campus’ Clery Act reports.” For example, the guidance that “one mile” into public property adjacent to a campus is reportable Clery Geography no longer applies. But an institution must evaluate each piece of public property within or adjacent to and accessible from their campus to determine how far into it should be reported. This determination must be reasonable (ED’s long-standing Clery enforcement standard), justified, documented, and disclosed.
Likewise, regarding the designation of personnel as a “Campus Security Authority” (CSA), someone who is obligated to report for crime statistics, it says they “will defer to an institution’s designation of CSAs as authoritative”. For officials other than public safety they must have “significant responsibility for student and campus activities” in order to be considered a CSA (or be designated by the institution as someone to who crimes should be reported). This determination, however, must still be “reasonable”.
Also, in announcing the rescission ED indicated that it won’t be retroactive, and that institutions may still “continue to rely on it for direction” if they wish to going forward so it isn’t going away completely. Specifically, ED said that the new guidance is “effective for the reporting year following publication” (offenses reported beginning January 1, 2021 and first included in the annual report due October 1, 2022) and that “the rescission will not retroactively apply to previous Department determinations regarding Clery Act violations, fines, enforcement actions, or any other related actions by the Department.”
No pending enforcement actions will be affected, and no substantive changes should be made until the 2021 reporting period. For those institutions that have delayed publication of their 2020 annual Clery reports under ED’s COVID-19 deadline extension this means that no changes should be made for the report to be published by December 31st of this year.
These changes will bring welcome relief from some difficult aspects of Clery Act compliance, such as being required to track crimes at hotels across the country and world where students spend as little as one night during official trips, as well as flexibility for institutions that face unique situations with geography or personnel. They, however, will also mean institutions will need to devote additional, potentially significant, energy to assessing how the statute and regulations apply to their particular situations from year-to-year.
It is also important to note that this should not be viewed as ED stepping back from Clery Act enforcement. Multimillion-dollar fines are now the norm and the substance of the Clery Act requirements remain unchanged. While institutions will have additional flexibility, if they haven’t made reasonable determinations to fill in the gaps left by the Handbook there may be significant compliance and enforcement issues.
Finally, as institutions take this opportunity to evaluate their Clery Act compliance we would encourage them to undertake or broaden efforts already underway to use it as a comprehensive campus safety framework. The decisions that many institutions will now need to make are an excellent opportunity to bring together diverse constituencies from across campus to work together. Remember the end goal is safer campuses not just “checking the boxes” for compliance.
Questions? E-Mail us at cleryquestions@safecampuses.biz for help.
This blog does not provide legal advice and does not create an attorney-client relationship. If you need legal advice, please contact an attorney directly.