powerpoint presentation · case-by-case basis. comments made during this presentation are for...

11/6/2015

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Jim Moore | November 6, 2015

U.S. Department of Education

Southwest Association of Student Financial Aid Administrators -

2015 Annual Conference

The Clery Act, VAWA, and More

Disclaimer

“This presentation provides general information about the Clery Act. It

does not represent a complete recitation of the applicable law or ED/FSA

policies in this area and is for discussion purposes only. This presentation

must not be used for any other purpose. Actual compliance

determinations must be made after a careful analysis of specific facts on a

case-by-case basis. Comments made during this presentation are for

instructional and illustrative purposes only and are not intended for

attribution or publication.”

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Agenda

Compliance with the Clery Act: Campus Crime, Fire Safety, and VAWA:

Practical Advice for Higher Education Professionals

• Thank You!!!

• Background/History of the Clery Act

• Monitoring and Enforcement

• Clery Act Basics

• Violence Against Women Reauthorization Act of 2013 (VAWA)

“ (At least) 10 Things That You Need To Know About VAWA”

A (Quick) Note on the “Intersection of Clery/VAWA, Title IX, and FERPA”

• Clery Team Collaboration

• Program Review

• Best Practices

• Drug-Free Schools and Communities Act

• Questions

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Background/History of the Clery Act

Campus safety and crime prevention requirements in the

HEA starts with the Crime Awareness and Campus Security

Act of 1990

• 1992 - Expanded sexual assault policy requirements

• 1998 - Expanded reporting requirements and renamed the law in memory of

Jeanne Clery (Crime Log; Expanded geographical scope)

• 2000 - Victims of Trafficking Act (Sex offender registry)

• 2008 – HEOA (Emergency notification and response; Fire safety)

• 2013 - Section 304 of VAWA amends the Clery Act

• What’s on the horizon…

College Accountability and Safety Act (CASA)?

Hold Accountable and Lend Transparency Act (HALT)?

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Monitoring and Enforcement

Federal Student Aid monitors & enforces the Clery Act:• Program Reviews - Three Types

• Complaint Assessments

• Media Assessments

Possible consequences of review findings:• Fines - up to $35,000 per offense (CASA Proposal)

• Limitation, suspension, or termination of the eligibility for student financial aid programs; denial of recertification or revocation of a provisional Program Participation Agreement

Special Note:

The Secretary “shall impose” a civil penalty for any Clery Act violation that rises to the level of a “significant misrepresentation.”

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Enforcement Tools

ED/FSA Enforcement Options:

• Fines (up to $35,000* per violation – primary option)

• Provisional Certification - Growth Restrictions

• Heightened Cash Monitoring

• Limitation, Suspension, and Termination

External Factors/Shifting Incentives:

• Student Activism + Media Attention = Increased Awareness

• Reputational Harm (“Public Shaming”)

• Legal Exposure

• Financial/Existential Risk

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Do It For Jeanne…Your Students…Your Friends…Your School

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Clery Basics – Getting It Right!

Theme #1: Moving From Compliance To Excellence!

Theme #2: Focus on campus safety & crime prevention

Theme #3: Protect the “Brand” and Risk Management

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Clery Basics

The Clery Act campus safety and crime prevention provisions

require all* schools to:

• Classify crime reports and compile and disclose crime statistics

• Publish and actively distribute an annual security report (ASR) that contains

all required statistical and policy disclosures (50+)

• Submit crime statistics to ED

• Issue timely warnings and emergency notifications

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Clery Basics - ASR

Publish and distribute an ASR

• Must distribute an accurate and complete report to all enrolled

students and current employees

• Directly by mail, hand delivery, or email or

• By posting on an Internet or intranet site that is reasonably accessible to current

students and employees

If you post the annual security report online, you must distribute a

notice by October 1st with statement of report’s availability, exact URL,

a description of contents, and statement that paper copy is available

upon request

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Clery Basics - ASR

Publish and distribute an ASR

• Must actively notify prospective students and employees about the

availability of the ASR. The notice must include a description of the

report’s contents and explain how to obtain a paper copy

• Must provide a copy of the ASR upon request

• If posted on an internet site, notice must also include exact URL

where ASR is posted

• For prospective students and employees, information may not be

posted on an intranet site

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Clery Basics - Reportable Offenses

Criminal Offenses Arrests/Disciplinary

Referrals

Hate Crimes VAWA

Murder/Non-Negligent

Manslaughter

Drug Law Violations Simple Assault Dating Violence

Rape Liquor Law Violations Intimidation Domestic Violence

Fondling Weapons Possession

Violations

Larceny/Theft Stalking (including

Cyber-Stalking)

Statutory Rape Vandalism/Destruction

of Property

Incest

Robbery

Aggravated Assault

Burglary

Motor Vehicle Theft

Arson

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Clery Basics - Hate Crimes

Classify crime reports and disclose crime statistics

• Hate crimes are motivated by the offender’s category of bias

• **Added to the Clery Act by the Matthew Shephard Act, 2009)

• Arrests and referrals for disciplinary action are based on violations of

weapons, drug, and liquor laws, not of institution policies

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• Race

• Gender

• Religion

• Sexual orientation

• Ethnicity/national origin

• Disability

• Perceived gender**

• Gender identity**

Clery Basics - Crime Statistics

Classify crime reports and disclose crime statistics

• Schools disclose reported offenses, regardless of whether or not the alleged

perpetrator is found guilty

“Reported” = brought to the attention of a campus security authority or local law

enforcement personnel. A report cannot be “unreported” but can be “unfounded”

by law enforcement if certain conditions are met.

• Count both attempted and completed crimes

• Make a reasonable, good faith effort to obtain crime statistics from local law

enforcement agencies

• Hierarchy and exceptions (Criminal Homicide & Arson)

• Crimes may be reported anonymously per institutional policy – never include

PII in the ASR and/or crime statistics

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Clery Basics - “Clery Geography”

Clery Geography Defined:

1. Campus I: any building or property owned or controlled by an institution within the same reasonably contiguous geographic area and is used by the institution in direct support of, or in a manner related to, its educational purposes, incl. Residence halls

2. Campus II: any building or property that is within or reasonably contiguous to the area identified above that is owned by the institution but is controlled by another person, is frequently used by students, and supports institutional purposes (such as food or other retail vendor)

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Clery Basics - “Clery Geography”

3. Non-campus building or property: (1) Any building or property owned or controlled by a student organization that is officially recognized by the institution; or (2) any building or property (other than a separate campus) owned or controlled by an institution that is used in direct support of, or in relation to, the institution’s educational purposes, is frequently used by students, and is not within the same reasonably contiguous geographic area

4. Public Property: All public property including thoroughfares, streets, sidewalks, and parking facilities, that is within the campus, or immediately adjacent to or accessible from the campus

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Clery Basics - Campus Security Authority

• Members of a campus law enforcement or public safety entity

• Any individual who has responsibility for campus safety but is not part of a campus law enforcement or public safety department or presence (hall monitors; parking attendants)

• Any official of an institution who has significant responsibility for student and campus activities, but does not have significant counseling responsibilities

• Actual professional & pastoral counselors are exempt

Note: Special considerations for institutions specializing in counseling or affiliated with churches/religious orders

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Clery Basics – ED Annual Survey

Submit crime statistics to ED

• Institutions report campus crime statistics for the 3 most-recent

calendar years

• Must match the statistical disclosures that were published in the

annual security report

• Deadline for completing the web-based data collection is specified by

the Secretary each year – typically mid-October

• Collected data are posted on OPE’s Data Analysis Cutting Tool (linked

to College Navigator) for public use

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Warning: This is NOT an ASR!

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Clery Basics - Safety Alerts

Issue Timely Warnings and Emergency Notifications

• Institutions must issue campus safety alerts to provide students and

employees with timely information about ongoing threats due to crime

or other dangerous conditions

Two kinds of alerts:

• Timely warnings are issued for Clery-reportable crimes that may pose a

serious ongoing threat (Clery Geography)

• Emergency notifications are issued upon the confirmation of a significant

emergency or dangerous situation that may pose an immediate threat to

health or safety (Campus Only)

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Clery Basics - Special Considerations

Additional requirements:

• Institutions with a campus police or security presence** must

additionally maintain a daily crime log

• Institutions with on-campus student housing facilities must

additionally:

• Develop and implement missing student notification procedures that pertain

to students residing in those facilities and include them in the ASR

• Comply with fire safety requirements

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Clery Basics - Crime Log

Daily Crime Log

• Log is a daily record of criminal and alleged criminal incidents

reported to the campus police or security personnel

• All crimes on Clery geography or within patrol jurisdiction of the campus

police/security department

• Not just Clery Act crimes

• Records nature, date the crime was reported, time, date, general location, and

disposition (if known) of each crime

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Clery Basics - Crime Log

Daily Crime Log

• Log must be available

• Must be accessible on-site (written or electronic)

• Available upon request for public inspection during business hours (most recent 60

days available immediately; older records available within 2 business days)

• Must be available without payment or written request

• May be combined with fire log

• Log must be maintained

• Must make additions or updates to an entry within two business days

• Update disposition up to 60 days from when crime was entered in the log

• Schools must archive log for seven years (record-retention requirement)

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Clery Basics - Missing Students

Missing Student Notification

• Include a statement in the ASR that addresses missing student

notification procedures that will apply when a it is determined that a

student that resides in on-campus student housing has been missing

for 24 hours

• Students must be given the opportunity to register a confidential

contact with the institution

– Confidential information for this purpose must be kept separate from general

emergency contact information

– Only authorized officials may have access to the information

– Such information may only be disclosed to law enforcement in furtherance of a

missing person investigation

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Clery Basics - Fire Safety

Fire Safety Policies and Statistics

3 primary compliance areas:

• Annual fire safety report

• Submit fire statistics to ED

• Fire log

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Violence Against Women Reauthorization Act of 2013

• Enacted March 7th, 2013; Final Rule issued on October 20, 2014

http://ifap.ed.gov/eannouncements/102014ViolenceAgainstWomenAct.html

• Requires expanded reporting for incidents of sexual assault, dating violence,

domestic violence, and stalking (including cyber-stalking) and clarifies the

limitations on “unfounding” a reported offense

• Requires that the ASR include additional information about policies,

procedures, and training programs aimed at sexual assault prevention and

response

• Expands accommodations and protective measures requirements

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• Enacted March 7th, 2013; Final Rule issued on October 20, 2014

http://ifap.ed.gov/eannouncements/102014ViolenceAgainstWomenAct.html

• Requires expanded reporting for incidents of sexual assault, dating

violence, domestic violence, and stalking (including cyber-stalking)

and clarifies the limitations on “unfounding” a reported offense

• Requires that the ASR include additional information about policies,

procedures, and training programs aimed at sexual assault prevention

and response

• Expands accommodations and protective measures requirements

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New Programmatic and Training Requirements include:

• Awareness Campaigns - Ongoing Requirement (Red Zones)

• Primary Prevention

• Risk Reduction

• Bystander Intervention

Per Master Calendar, final regulations went into effect July 1, 2015

Institutions were already obligated to make a good faith effort to comply

with statutory requirements - diagnostic and corrective approach

Clarification regarding the intersection of Clery Act & Title IX: Strict

compliance with Clery Act/VAWA will NEVER cause a direct violation of

Title IX (or FERPA)

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Key Provisions

• Revises the definition of Rape

• Adds Gender Identity and Perceived Gender to Hate Crimes provision

• Requires Specialized Training for Disciplinary Hearing Officials

• Reforms to the disciplinary proceeding process

Fair, prompt, and impartial process

More information on how to file complaints

Explicit right to timely notice of all meetings (including appeals)

List possible sanctions

Describe the range of protective measures

Equal opportunities to be heard, present evidence, and have others

present (Basic procedural rights to notice and to hearing)

Advisor of choice

Unconditional and simultaneous notice of outcomes reached and

sanctions imposed

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Collaboration within ED and Beyond

Clery-OCR Statement of Principles for Cooperation

Gives structure to existing partnerships

Complaint processing and exchange

Enforcement cases

Joint interviews

Information sharing

Better experience and fewer obstacles for students/complainants

Improved efficiency/stewardship of limited resources

Creating learning opportunities for schools and ED staff

Integrated technical assistance

Build & leverage mutual understanding of unique roles and mission

Protection of confidentiality and privacy rights

Enhanced collaboration with ED POCs: OPE - OGC - FERPA - OIG

DOJ - OVW and CJIS (Formal MOU)

HHS - CDC: Sexual Assault and Substance Abuse

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Program Reviews - What to Expect

Written Notification - Fieldwork - PRR – Response - FPRD

“How do you know what you think you know?”

Document! Document!! Document!!!

• Document requests (not a negotiation)

• Police/Public safety incident reports + arrest records

• Student and employee conduct records…advocacy, athletics, Greeks, housing

• What about FERPA?

• Interviews

• Institutional officials - Students - Law enforcement - social service agencies

• Emphasis on full disclosure and timely production

• Role of advisors, consultants, and attorneys

• Opportunity to demonstrate administrative capability

• Separate from other reviews or investigations (ED OCR; Justice)

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Best Practices

• Appoint and empower a Clery Act/Part 86 Compliance Officer

• Get Value from the People and Firms that You Hire!

• Internal staff/Outside professionals/Software vendors/Associations

• Develop an understanding of “Clery Geography”

• Identify and train “Campus Security Authorities”

• Specifically inform students and employees about how to report

• Develop a VAWA Implementation/Integration Plan

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Drug-Free Schools & Communities Act

Implemented by 34 CFR Part 86 (Part 86)

• Requires institutions to certify that they have developed and

implemented a drug and alcohol abuse education and prevention

program (DAAPP) – completed through the PPA

• The program must be designed to prevent the unlawful possession,

use, and distribution of drugs and alcohol on campus and at

recognized events and activities

• As part of the program, institutions must distribute certain

information to students and employees annually

• Institutions must do a biennial review of the program

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Annual disclosure

• Must share information with current students and employees

• 34 CFR § 86.100 outlines the information that must be included:

• Standards of conduct prohibiting the possession, use, and distribution of

drugs and alcohol

• Possible sanctions for violations of Federal, state, and local drug and alcohol

laws as well as sanctions for violation of institutional policies

• Health risks associated with the use of drugs and alcohol

• Information on counseling, rehabilitation, and treatment programs

• A clear statement that the school will impose sanctions on students and

employees who violate drug and alcohol laws, ordinances, and/or

institutional policies

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Biennial Review - Two objectives:

• To determine the effectiveness of your drug and alcohol abuse

prevention program

• To ensure consistent enforcement of applicable laws, ordinances,

and institutional policies against violators

The biennial review report and supporting documents must be

maintained by the school and made available to the Department upon

request

Special Note: The DFSCA requirements are stackable/cumulative i.e. if an

institution fails to develop and implement a substantive DAAPP, the institution

CANNOT comply with the other requirements

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QUESTIONS?

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Jim Moore

Clery Act Compliance Team

[email protected]

General Inquiry Mailbox

[email protected]

mailto:[email protected]

mailto:[email protected]

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