Clery Act Annual Security Reports Are Due Soon, and Mistakes May Be Costlier Than Ever

When the campus-crime reporting law that became known as the Clery Act was first enacted in 1990, fines were set at $25,000 per infraction. This amount has gone up from time to time over the years, and in April the U.S. Department of Education issued a final rule that more than doubles the initial amount to $54,789 per violation.

The latest increase comes nearly one year after the department updated its Clery handbook, the implications of which compliance officers on campuses are still struggling to fully grasp as the October 1 deadline approaches for filing their annual reports on crime statistics.

Oversights and inaccuracies in a college’s annual security report, and other deficiencies in complying with the act, can cost the college thousands of dollars in fines and create the notion that campus safety is not a concern, which can have a negative effect on its culture and recruiting.

Here are some actions that colleges should be taking now to be in compliance and file their reports by October 1:

• Request 2016 crime statistics from local law-enforcement agencies.
• Ask “campus security authorities” — these include coaches, resident advisers, and others with significant oversight of student life or campus venues — if they have any criminal incidents to report from 2016.
• Make sure the required daily crime log includes all necessary elements, is up to date and is available upon request.
• Confirm that crime statistics for the sex offenses of rape, fondling, incest, and statutory rape are appropriately disclosed.
• When disclosing crime statistics, make sure the report correctly applies the hierarchy rule, which comes into play when more than one criminal offense was committed during a single incident.
• Ensure that statements of policy, procedure, and programming in the report contain the level of detail the Education Department expects.
• Make sure prospective students and employees know the report is available.
• Plan to publish a report for each campus or to publish one that covers all the campuses and distinguishes among them.
• Remember to comply with requirements related to fire safety (e.g., maintaining a fire log and publishing an annual fire-safety report).

The increase in fines further complicates matters for certain institutions like Baylor University, where compliance with Clery Act reporting requirements is under investigation by the Education Department in the wake of a wide-ranging sexual-assault scandal.

Baylor could be hit with the largest Clery Act fine ever, an even larger fine than the $2.4-million penalty leveled against Pennsylvania State University following revelations about the Jerry Sandusky sexual assaults. Prior to Penn State’s penalty, the largest Clery Act fine, $350,000, was assessed against Eastern Michigan University in 2008.

Although the Clery Act review at Penn State was prompted by the Sandusky situation, the bulk of the fine was for failing to appropriately classify reported incidents and disclose crimes in the university’s annual security reports. Those failures to report account for nearly $2.2 million of the total fine, with other Clery compliance issues resulting in a relatively small portion of the total. Baylor’s potential fine could follow this pattern.

The significant Penn State fine, coupled with the recent increase in potential fine amounts, is a reminder of the Education Department’s intention to aggressively enforce the Clery Act. It uses several approaches to evaluate an institution’s compliance, including program reviews and “spot check” assessments.

Commonly, an institution’s Clery Act compliance is evaluated as part of a general program review conducted by the department under Title IV, the section of the Higher Education Act that sets out requirements for colleges that receive federal student aid.

An institution with findings of potential Clery Act violations may then receive notice of a focused campus-security compliance review within 18 to 24 months following resolution of the general program review. Clery Act reviews can also occur without a prior general review if the department receives a complaint or if other information suggests noncompliance.

This more focused review will entail a campus visit from representatives of the department’s Clery Act division to review documentation and meet with campus officials responsible for compliance. About 12 to 18 months later, the department will issue a preliminary program-review report and give an institution 60 calendar days to respond. After considering the institution’s response, the department will issue a final determination, which includes any fines that will be imposed.

In addition to these program reviews, the Clery division may also less formally “spot check” an institution compliance after a high-profile incident. In such situations, the scope and time frame for the review are significantly condensed. Typically, a representative of the Clery division will email a college, requesting specific information related to the incident that (for example, documentation of a timely warning issued or an explanation of why one was not issued, or a defined segment of the daily crime log), as well as a map of the institution’s areas that are covered by the Clery Act and a copy of its most recent annual security report. All of this documentation must be provided within five days.

Within a few weeks, the representative will provide feedback on the institution’s handling of the incident in question from a Clery Act perspective and, perhaps, more general considerations. If this spot check reveals significant inadequacies, an institution should then anticipate the initiation of a more thorough Clery Act compliance review.

Most administrators know that Clery Act compliance is crucial, and keeping up with it is a year-round obligation. But the increased fine amount offers a not-so-subtle reminder of the potential consequences if an institution fails to accurately track and disclose crime statistics or publish an adequate annual security report.

Hayley Hanson and Ben Irwin are lawyers who specialize in compliance and governance issues involving higher education.