U.S. Department of Education Releases Clery Act Handbook 2016
Posted on August 1st, 2016
by Dr. Kathleen Conn
The U.S. Department of Education Office of Postsecondary Education has released the 2016 edition of the Handbook for Campus Safety and Security Reporting to guide institutions of higher education in complying with the Jeanne Clery Disclosure of Campus Security Policy and Campus Crime Statistics Act, better known simply as the “Clery Act.”
The 265-page 2016 Handbook replaces the 2011 edition, and responds to the amendments to the Clery Act included in the Violence Against Women Reauthorization Act (VAWA) signed into law by President Obama on March 7, 2013. The VAWA amendments to the Clery Act included new categories of crimes that colleges and universities must annually report, new programs that the institutions must implement, and new policies and procedures for institutional disciplinary actions that must be disclosed.
All institutions of higher education which participate in federal Title IV student financial assistance programs must comply with the Clery Act, including those institutions whose students receive Pell grants, Perkins Loans, Federal Supplementary Educational Opportunity Grants, and other federal assistance programs. Only institutions which are totally distance education, whose students do not appear on a campus except for a graduation ceremony, are exempt.
Each Fall, institutions must file a Web-based data collection report disclosing crime statistics for crimes that occurred in “Clery geography,” areas under the ownership and control of the institution and the public property within or immediately adjacent to campus. The concept of Clery geography had proven difficult in the past because of the varied expanses and characteristics of higher education entities. The 2016 Handbook attempts to clarify the concept by providing more examples of institutional holdings, e.g., hospitals, medical centers, bookstores, and other campus-associated entities, that are included in Clery geography. The Handbook also clarifies that locations within one mile of the campus can be considered as “reasonably contiguous.”
The Clery Act amendments in VAWA added the requirements that, in addition to sexual assaults, institutions of higher education must also disclose statistics, policies, and programs related to dating violence, domestic violence, and stalking, now called “VAWA offenses,” and added new categories of hate crimes. The amendments also required that colleges and universities implement primary prevention and awareness programs for incoming students and employees, as well as ongoing programs to prevent sexual violence. The Reauthorization required that institutions disclose procedures for institutional disciplinary actions, including stating the standard of evidence used in each institutional disciplinary proceeding, possible sanctions to be imposed, and measures the institution would take to protect and support victims. However, in its April 2014 Dear Colleague Letter, Questions and Answers on Title IX and Sexual Violence, the Office for Civil Rights mandated that educational institutions use the preponderance of evidence standard in all internal disciplinary actions for sexual offenses. This conflict between the VAWA Reauthorization and OCR guidance has not been resolved, and does not appear in the new Handbook.
The 2016 Handbook details the four categories of crimes that must be reported: criminal offenses, hate crimes, VAWA offenses, and arrests and referrals for disciplinary actions.
Statistics must be disclosed separately, and if an incident can be characterized as in more than one category of offense, it must be reported in each category. The crime of sexual assault is no longer characterized as forcible/non-forcible, and although the definition still includes lack of consent, the handbook confirms that no determination of consent is required for reporting. The new Handbook provides more contextual examples and clearer definitions of offenses.
The VAWA reauthorization added several categories of hate crimes to the list of reportable crimes: sexual orientation, gender, and gender identity, and split out ethnicity and national origin as separate categories. The Handbook gives examples of what each of these hate crimes looks like. As for the VAWA offense of stalking, confusingly described in the VAWA Regulations, the Handbook clarifies that the stalking need not occur in Clery geography, and that more than one institution may be required to report the offense. The Handbook notes that arrests and referrals for drugs and liquor law violations must be counted along with criminal offenses, but cautions that possession of small amounts of marijuana should not be counted as a drug violation in states where marijuana use is legal.
All reports of crimes must be added to the institutional statistics, even if discovered later to be “unfounded.” The new Handbook emphatically states that a report must not be characterized as unfounded unless, after a thorough investigation, sworn or commissioned law enforcement personnel make a formal determination that the report is false or baseless. Institutions must also report the number of unfounded offenses it has withheld from the database.
Clery Act reporting is serious business.
The DOE may issue civil fines of up to $35,000 per violation for substantial misrepresentation of the number, location, or kind of the crimes to be reported. Institutional mishandling of sex-based crimes can be even more expensive. On July 5, 2016, the University of Tennessee-Knoxville settled a Title IX lawsuit brought by eight female students who complained to OCR that they were assaulted by six student athletes. The women alleged that the university’s disciplinary proceedings favored the athletes. They charged that the university provided the men with attorneys and denied their rights to a hearing. Five of the athletes were found to have committed sexual assaults, but were allowed to stay on campus and graduate. The settlement amounted to $2.48 million. OCR has indicated that despite the settlement, they may continue the investigation.
This Collegiate Comment is a publication of the KingSpry Higher Education Law Division. It is meant to be informational and does not constitute legal advice.
U.S. Department of Education Releases Clery Act Handbook 2016
Posted on August 1st, 2016
by Dr. Kathleen Conn
The U.S. Department of Education Office of Postsecondary Education has released the 2016 edition of the Handbook for Campus Safety and Security Reporting to guide institutions of higher education in complying with the Jeanne Clery Disclosure of Campus Security Policy and Campus Crime Statistics Act, better known simply as the “Clery Act.”
The 265-page 2016 Handbook replaces the 2011 edition, and responds to the amendments to the Clery Act included in the Violence Against Women Reauthorization Act (VAWA) signed into law by President Obama on March 7, 2013. The VAWA amendments to the Clery Act included new categories of crimes that colleges and universities must annually report, new programs that the institutions must implement, and new policies and procedures for institutional disciplinary actions that must be disclosed.
All institutions of higher education which participate in federal Title IV student financial assistance programs must comply with the Clery Act, including those institutions whose students receive Pell grants, Perkins Loans, Federal Supplementary Educational Opportunity Grants, and other federal assistance programs. Only institutions which are totally distance education, whose students do not appear on a campus except for a graduation ceremony, are exempt.
Each Fall, institutions must file a Web-based data collection report disclosing crime statistics for crimes that occurred in “Clery geography,” areas under the ownership and control of the institution and the public property within or immediately adjacent to campus. The concept of Clery geography had proven difficult in the past because of the varied expanses and characteristics of higher education entities. The 2016 Handbook attempts to clarify the concept by providing more examples of institutional holdings, e.g., hospitals, medical centers, bookstores, and other campus-associated entities, that are included in Clery geography. The Handbook also clarifies that locations within one mile of the campus can be considered as “reasonably contiguous.”
The Clery Act amendments in VAWA added the requirements that, in addition to sexual assaults, institutions of higher education must also disclose statistics, policies, and programs related to dating violence, domestic violence, and stalking, now called “VAWA offenses,” and added new categories of hate crimes. The amendments also required that colleges and universities implement primary prevention and awareness programs for incoming students and employees, as well as ongoing programs to prevent sexual violence. The Reauthorization required that institutions disclose procedures for institutional disciplinary actions, including stating the standard of evidence used in each institutional disciplinary proceeding, possible sanctions to be imposed, and measures the institution would take to protect and support victims. However, in its April 2014 Dear Colleague Letter, Questions and Answers on Title IX and Sexual Violence, the Office for Civil Rights mandated that educational institutions use the preponderance of evidence standard in all internal disciplinary actions for sexual offenses. This conflict between the VAWA Reauthorization and OCR guidance has not been resolved, and does not appear in the new Handbook.
The 2016 Handbook details the four categories of crimes that must be reported: criminal offenses, hate crimes, VAWA offenses, and arrests and referrals for disciplinary actions.
Statistics must be disclosed separately, and if an incident can be characterized as in more than one category of offense, it must be reported in each category. The crime of sexual assault is no longer characterized as forcible/non-forcible, and although the definition still includes lack of consent, the handbook confirms that no determination of consent is required for reporting. The new Handbook provides more contextual examples and clearer definitions of offenses.
The VAWA reauthorization added several categories of hate crimes to the list of reportable crimes: sexual orientation, gender, and gender identity, and split out ethnicity and national origin as separate categories. The Handbook gives examples of what each of these hate crimes looks like. As for the VAWA offense of stalking, confusingly described in the VAWA Regulations, the Handbook clarifies that the stalking need not occur in Clery geography, and that more than one institution may be required to report the offense. The Handbook notes that arrests and referrals for drugs and liquor law violations must be counted along with criminal offenses, but cautions that possession of small amounts of marijuana should not be counted as a drug violation in states where marijuana use is legal.
All reports of crimes must be added to the institutional statistics, even if discovered later to be “unfounded.” The new Handbook emphatically states that a report must not be characterized as unfounded unless, after a thorough investigation, sworn or commissioned law enforcement personnel make a formal determination that the report is false or baseless. Institutions must also report the number of unfounded offenses it has withheld from the database.
Clery Act reporting is serious business.
The DOE may issue civil fines of up to $35,000 per violation for substantial misrepresentation of the number, location, or kind of the crimes to be reported. Institutional mishandling of sex-based crimes can be even more expensive. On July 5, 2016, the University of Tennessee-Knoxville settled a Title IX lawsuit brought by eight female students who complained to OCR that they were assaulted by six student athletes. The women alleged that the university’s disciplinary proceedings favored the athletes. They charged that the university provided the men with attorneys and denied their rights to a hearing. Five of the athletes were found to have committed sexual assaults, but were allowed to stay on campus and graduate. The settlement amounted to $2.48 million. OCR has indicated that despite the settlement, they may continue the investigation.
This Collegiate Comment is a publication of the KingSpry Higher Education Law Division. It is meant to be informational and does not constitute legal advice.