The Clery Act, VAWA, and More

1. The Clery Act, VAWA, and More Jim Moore and Keith Ninemire | July 27. 2015 U.S. Department of Education Salish Kootenai College Student Affairs - Financial Aid Training Conference 2015

2. 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.”

3. 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” • FSA/OCR Collaboration • Best Practices • Drug-Free Schools and Communities Act • Questions

4. 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)?

5. 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.”

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

7. 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 • Student Activism • Media Attention • Better Awareness • Shifting Incentives • Financial/Existential Pressures

8. 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 • Police/Security: Daily Crime Log • Housing: Missing Persons Notification & Fire Safety

9. 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

10. 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

11. Clery Basics - Reportable Offenses

12. 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 • Race • Gender • Religion • Sexual orientation • Ethnicity/national origin • Disability • Perceived gender** • Gender identity**

13. 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

14. Clery Basics - “Clery Geography” Clery Geography Defined: • 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 • 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)

15. Clery Basics - “Clery Geography” • 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 • 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

16. 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 • Actualprofessional & pastoral counselors are exempt Note: Special considerations for institutions specializing in counseling or affiliated with churches/religious orders

17. 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

18. Warning: This is NOT an ASR!

19. 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)

20. 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

21. 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

22. 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 • 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)

23. 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

24. Clery Basics - Fire Safety Fire Safety Policies and Statistics • 3 primary compliance areas: • Annual fire safety report • Submit fire statistics to ED • Fire log

25. Clery Basics - Fire Safety Publish an Annual Fire Safety Report (AFSR) • Must publish and actively distribute AFSR by October 1st • Report must include: • Fire statistics • Current fire safety policies and procedures • must be a single, comprehensive report • Annual fire safety report and annual security report • May be published separately or together • If published separately, specify how to access the other report in each one

26. Clery Basics - Fire Safety Submit fire statistics to ED • Must submit fire statistics for three most-recent calendar years • Collected via the same web-based collection tool as the campus crime statistics • Includes statistics for each on-campus student housing facility – if questions arise about ownership or whether a housing unit is on-campus, please consult with the Clery Team - clery@ed.gov or the Help Desk • Statistics include: • Number and cause of each fire • Number of persons with injuries related to a fire that resulted in treatment at a medical facility • Number of deaths related to a fire • Value of property damage

27. Clery Basics – Fire Safety Fire Log • Fire log is a record of any fire that occurs in an on-campus student housing facility • Records nature, date the crime was reported, time, date, nature, and general location of each fire • Must be written and easily understood • Annual report to the campus community on fires recorded in the log

28. Clery Basics – Fire Safety Fire 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 • 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 • The fire log may be combined with the daily crime log • Label it well so users know it is both a crime and fire log • Ensure that it contains the required elements for both logs

29. 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

30. Violence Against Women Reauthorization Act of 2013 New Programmatic and Training Requirements include: • Awareness Campaigns – Ongoing Requirement • Primary Prevention • Risk Reduction • Bystander Intervention Per Master Calendar, final regulations went into effect July 1, 2015Institutions were already obligated to make a documented, good faith effort to comply with the statutory requirements – 2014 ASR Intersection of Clery Act & Title IX: Strict compliance with Clery Act/VAWA will NEVER cause a direct violation of FERPA and/or Title IX: https://www.notalone.gov/assets/ferpa-clerychart.pdf

31. 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)

32. FSA/Clery-OCR Collaboration Principles for Cooperation • Increased collaboration during the last year! • Gives structure to existing partnerships • Complaint intake, referral, and resolution • Enforcement cases • Better communication • 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

33. 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

34. 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

35. Drug-Free Schools & Communities Act 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

36. Drug-Free Schools & Communities Act Biennial Review** • Objectives are: • 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

37. QUESTIONS? Jim Moore Clery Act Compliance Team james.moore@ed.gov Keith Ninemire Clery Act Compliance Team keith.ninemire@ed.gov General Inquiry Mailbox clery@ed.gov