Over the last few decades, I’ve reviewed thousands of Clery Act Annual Security Reports, and perhaps no provision is more misunderstood than “voluntary, confidential” crime reporting. The most important things to know about it are that institutions aren’t required to offer it, anonymous reporting options don’t count, and it must be used solely “for inclusion in the annual disclosure of crime statistics.” The only thing colleges and universities must do is disclose whether or not they offer it, and if they offer it explain how it works. Many reports, however, vary from this widely.
The U.S. Department of Education established “voluntary, confidential” reporting in 1999 as a compromise to continue to include statistics for reports made to mental health and pastoral counselors that Congress otherwise excluded as part of a 1998 amendment. The idea was that institutions would have the level of detail, including the identity of the reporting party, needed to accurately make Clery disclosures, but take no further action. Otherwise, it would be the same as if the report had been made under privilege.
Although I’d been a proponent of this compromise it became apparent fairly quickly that it would be difficult to implement in reality. Many campus police departments have public records requirements, and this was also around the time that Title IX obligations to effectively respond to sexual misconduct were becoming better understood.
When issuing the final version of this rule the Education Department readily acknowledged these challenges stating, for example, that any “institution prohibited by State law from allowing confidential reporting simply would be required to state that in its annual security report.” They also stated that “the regulations refer to confidential reporting, not anonymous reporting. The regulations do not require institutions to allow confidential reporting.”
Given the challenges in implementing a fully confidential reporting program many institutions, however, did offer an anonymous reporting option even though there was no requirement to address this option. Offering this option is a valuable tool for capturing information about possible threats in real time as well as for Clery reporting, but it doesn’t satisfy the requirement to disclose information about “voluntary, confidential” reporting for Clery purposes.
In order to offer a truly “voluntary, confidential” reporting option today institutions must meet a very specific set of criteria. First, there must be a designated recipient of the reports, which can be one or more officials or offices. Second, the recipient must have no obligations under state law, Title IX, or otherwise to take action. Finally, they must be qualified and empowered on their own to classify and count offenses (they can exclude double reports by reviewing non-confidential reports made to other officials) as well as make decisions about whether or not to issue a timely warning.
In 2016’s The Handbook for Campus Safety and Security Reporting the Education Department stated “If your institution does not allow voluntary, confidential reporting, provide a statement about this fact.” Accordingly, for many institutions the simplest option will be to state that they don’t offer this option, and that as a result they don’t have a program they can encourage counselors to refer people to. This doesn’t in any way diminish the importance of anonymous reporting options, and they should continue to be promoted in Clery annual campus safety reports and elsewhere.
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.
