Complying with the Clery Act

1. Session 49 ComplyingwiththeCleryAct James Moore | Nov-Dec 2016 U.S. Department of Education 2016 FSA Training Conference for Financial Aid Professionals

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 Complying with the Clery Act • A Special Thank You • ASR Production, Distribution, and Notification • Clery-Reportable Crimes • “Clery Geography” • Campus Security Authorities • Safety Alerts: Timely Warnings and Emergency Notification • Special Considerations • Clery, VAWA, and Title IX - What You Need to Know • A (Quick) Note on the “Intersection of Clery/VAWA, Title IX, and FERPA” • Questions

4. Quotable Quotes “It ain’t what you don’t know that gets you into trouble It’s what you know for sure that just ain’t necessarily so.” Mark Twain

5. The Clery Act Is About People, Not Paper!

6. Quotable Quotes • Speaking about the importance & purpose of compliance… “Compliance is just something that we do and that happens when we go about the business of keeping people safe.” Paul J. Wiedefeld New Executive Director DC Metro

7. ASR Production and Distribution Must actively 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

8. ASR Notification 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 merely be posted on an intranet site

9. Annual Crime Statistics Survey Submit crime statistics to ED • Institutions report campus crime statistics for the three 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

10. Warning: This is NOT an ASR!

11. Four General Categories (3-2) • Statistics must be disclosed for each of four separate categories (when an incident meets definitions in more than one of those categories, it must be reported in each category) • Hierarchy rule only applies when counting crimes in the criminal offenses category

12. Clery-Reportable Crimes

13. Campus 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, Rape, & Arson) • Crimes may be reported anonymously per institutional policy - never include PII in the ASR and/or crime statistics

14. Campus Crime Statistics • Language change – Negligent Manslaughter (2011)/Manslaughter by Negligence (2016) (3-2) • Sexual assault (sex offenses) – no longer forcible/non-forcible (3-6 - 3-7) • Rape • Fondling (only counted if it is the only sex offense) • Incest • Statutory Rape (if force was used or threatened or the victim was incapable of giving consent because of age or temporary or permanent mental impairment, classify the incident as rape) • Although definition of sexual assault includes lack of consent, no determination as to whether the element is met is required for statistical reporting (3-7)

15. Campus Crime Statistics • Aggravated assaults – additional context (3-11) • Intent of attacker and extent of injuries (3-11) • Use of drugs to subdue a victim (3-11) • Intent after consensual contact (3-12) • Deciding factor (3-12) • Burglary – additional context (3-14) • Unlawful entry – no force (3-14) • Evaluating attempts (3-14) • Additional scenarios (3-18 – 3 – 19)

16. Campus Crime Statistics • Arson– additional context (3-21) • All evidence regarding a fire not known to be accidental (such as a cooking fire) must be considered by the institutional official designated to make such determinations (3-21) • Does not require findings to be made by a fire official (3-21) • Additional information regarding fires in privately-owned houses and in on-campus buildings as well as point of origin determinations (3-22)

17. Hierarchy Rule Exception (3-25) • If rape, fondling, incest, or statutory rape occurs in the same incident as murder, count both the sexual assault and the murder • Fondling is recognized as an element of the other sexual assaults • Include a sexual assault as fondling only if it is the only sexual assault

18. Arrests & Referrals

19. Arrests & Referrals • All other elements remain the same regarding counting • Referrals • Sanctions can be formal or informal, punitive, or educational (3-45) • Classifying law violations • Do not classify as a drug abuse violation possession of a small amount of marijuana in states that have decriminalized this conduct, meaning that the conduct is no longer a criminal offense (3-48) • Referrals that occur for this decriminalized conduct should not be counted for Clery Act purposes • Do not classify as drug abuse violation the use of legally obtained, personal prescription drugs used by the owner in a manner not consistent with the instructions provided by the physician (3-48)

20. Hate Crimes • Updated definitions (3-25): • Sexual orientation: A preformed negative opinion/attitude toward a group of persons based on their actual or perceived sexual orientation (3-26) • Gender: A preformed negative opinion/attitude toward a person or group of persons based on their actual or perceived gender (3-26) • Gender identity: A preformed negative opinion/attitude toward a person or group of persons based on their actual or perceived gender identity (3-26)

21. Hate Crimes • Updated definitions: • Ethnicity: a preformed negative opinion or attitude toward a group of people whose members identify with each other, through a common heritage, often consisting of a common language, common culture (often including a shared religion) and/or ideology that stresses common ancestry (3-26) • National origin: a preformed negative opinion or attitude toward a group of people based on their actual or perceived country of birth (3-26) • Disability – removed the word challenges from definition (3-26)

22. Requesting Statistics from Local Law Enforcement • Recommendations regarding good faith effort (4-12 – 4-18) • Not required to verify accuracy, but required to ensure statistics cover Clery geography and not other areas (4-12 – 4-13) • Can request clarification if not sure how crime would be listed (4-17) • If denied statistics, document & can consult state and local open records laws to see if law enforcement agencies are required to provide crime statistics (4-17) • Sample Letter – Appendix B

23. What does “Unfounded” mean? An institution may withhold, or subsequently remove, a reported incident from its crime statistics if, after a diligent inquiry, a sworn or commissioned law enforcement officer makes a formal determination that the available evidence shows that a particular crime report was in fact false or baseless

24. Unfounded Crimes • Only sworn law enforcement officer can unfound a crime • Crime reports can be “unfounded” only when the evidence establishes that the reported crime was not completed or attempted in any manner • A case cannot be “unfounded” because • Victim or witness refuses to cooperate • No investigation was conducted or the investigation was not completed • The investigation failed to prove that the crime occurred; this would be an inconclusive or unsubstantiated investigation • Prosecutor declined to pursue criminal charges against the alleged perpetrator(s)

25. “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)

26. “Clery Geography” Defined 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 - “mobile” campuses and sea-faring vessels 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

27. “Clery Geography” - Other Considerations • In spite of what you may have heard… • Nothing about the geographical definitions has changed but helpful context is provided • Institution-associated foundation, holding company, subsidiary, alumni association, athletic booster club, or any other institution-associated entity (2-3) • Institution-associated hospitals or medical centers (2-3)

28. “Reasonably Contiguous” Defined • “Reasonable to consider locations within one mile of your campus border to be reasonably contiguous within your campus” (2-3) • Determination must be made on a case-by case basis (2-3) • …And what about separate campuses? (Chapter 2, 6-8)

29. Trips to Off-Campus Locations • Overnight, school sponsored trip (one night, rent motel room) – not reflected in statistics (2-25) • Repeated use of a location for a school sponsored trip (overnight trip every year and students stay in same hotel each year) must include portions of the hotel in non-campus geography (2-25) • Short-stay “away” trips (more than one night) – locations controlled treated as non-campus (2-25-2-26) • Includes written agreement with third-party contractor for housing and/or classroom space • If no control, don’t count (ex: sports tournament – host institution makes all housing arrangements – host institution required to count but visiting institutions do not)

30. Campus Security Authorities • 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

31. Campus Security Authorities - Other Considerations • If institution directs students or employees to report crimes to other individuals, those individuals are CSAs (4-4) • Could include: • Physicians in campus health center • Counselors, including peer counselors (except for professional or pastoral counselors) • Health educators

32. Campus Security Authorities - Examples (4-3) • A dean of students who oversees student housing, a student center or student extracurricular activities; • A director of athletics, all athletic coaches (including part-time employees and graduate assistants); • A faculty advisor to a student group; • A student resident advisor or assistant; • A student who monitors access to dormitories or buildings that are owned by recognized student organizations; • A coordinator of Greek affairs; • A Title IX coordinator; • An ombudsperson (including student ombudspersons); • The director of a campus health or counseling center; • Victim advocates or others who are responsible for providing victims with advocacy services, such as assisting with housing relocation, disciplinary action or court cases, etc.; • Members of a sexual assault response team (SART) or other sexual assault advocates; and, • Officers from local law enforcement who are contracted by the institution to provide campus safety-related services.

33. What Do Campus Security Authorities Do? • Report to official or office designated by institution to collect crime report information allegations of Clery Act crimes (4-5) • Responsible for reporting allegations of Clery Act crimes reported to them in their capacity as a CSA (4-5) • Not responsible for investigating or reporting incidents that they overhear students talking about in a hallway conversation; that a classmate or student mentions during an in-class discussion; that a victim mentions during a speech, workshop, or any other form of group presentation; or that the CSA otherwise learns in an indirect manner (4-5) • Not responsible for determining whether crime took place, apprehend the alleged perpetrator, or convince a victim to contact law enforcement if the victim chooses not to do so (4-6)

34. What Do Campus Security Authorities Do? (4-8) • In most cases it is possible for a CSA to fulfill his or her responsibilities while still protecting victim confidentiality • Alerting responsibilities can usually be met without disclosing personally identifiable information • CSA report does not need to automatically result in the initiation of a police or disciplinary investigation if the victim does not want to pursue this action • Recommendations on notifying & training (4-9 – 4-11) • If institution has campus police or security department and crime is reported to a non-police/security CSA, the report should be forwarded to your campus police or security department so that it will be entered in the daily crime log in timely manner (4-10)

35. 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)

36. Safety Alerts Issue Timely Warnings & Emergency Notifications

37. 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

38. Daily Crime Log • The crime 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

39. 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 two 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)

40. Daily Crime Log • Can use log required by state law if it does not require victims’ names to be listed – log may not jeopardize the confidentiality of the victim (5-2) • Can use state crime classifications, but using UCR may help in ensuring that crime statistics are consistent with the reports in the crime log (5-5) • If investigation shows initial description was inaccurate, update the description (not unfounded) (5-5)

41. 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

42. Missing Student Notification • Include a statement in the ASR that explains the missing student notification procedures that apply when it is determined that a student residing in 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

43. Fire Safety Fire Safety Policies and Statistics Three primary compliance areas: • Annual fire safety report • Submit fire statistics to ED • Fire log

44. Violence Against Women Reauthorization Act of 2013 • VAWA Enacted March 7, 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) • Requires that the ASR include additional information about policies, procedures, and training aimed at sexual assault prevention and response • Expands accommodations and protective measures requirements

45. Violence Against Women Reauthorization Act of 2013 New Programmatic and Training Requirements include: • Awareness Campaigns - Ongoing Requirement (Red Zones) • Primary Prevention • Risk Reduction • Bystander Intervention Per the ED 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.

46. Violence Against Women Reauthorization Act of 2013 • Definitions from Violence Against Women Act (3-36 – 3-29) • Pulls recommendations from the preamble to the final regulations • Provides information on how to interpret definitions and how to count, including: • Victim may use language other than “dating” (3-36) • Domestic violence must be more than just two people living together as roommates – must be current or former spouses or have an intimate relationship (3-38) • Record stalking at only first location perpetrator engaged in stalking or victim first became aware of stalking (3-39) • Not necessary that all stalking activities occurred on Clery Geography (3-39) • Can provide additional context for stalking info but not required to (3-40) • Not required to follow up with victims each year but not precluded from doing so (3-40) • May have more than one institution counting same incident; encourage alerting other campus if knowledge of stalking (3-40) • Hierarchy rule does not apply to VAWA Offenses. (3-41)

47. Violence Against Women Reauthorization Act of 2013 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 the disciplinary proceeding process • More information on how to file complaints • List possible sanctions • Describe the range of protective measures • Explicit right to timely notice of all meetings (including appeals) • Fair, prompt, and impartial process • Advisor of choice • Equal opportunities to be heard, present evidence, and have others present (Basic procedural rights to notice and to hearing) • Unconditional and simultaneous notice of outcomes reached and sanctions imposed

48. Title IX and Sexual Violence The Imperative: Institutions that receive federal education funding must take prompt and effective steps reasonably calculated to end the sexual violence, eliminate any hostile environment, and prevent its recurrence • First step: Appoint (and empower) a Title IX Coordinator When sexual violence is alleged, the institution must: • Conduct an immediate and appropriate investigation • Must be fair, prompt, and impartial • Provide adequate and timely notice and a fair hearing - Equal opportunity to present relevant witnesses and evidence - “Representation” – Equitable and transparent appeals • Must use the preponderance-of-the-evidence standard of proof • Both parties must be notified, in writing, about the outcome of the complaint and any appeal

49. Clery Act and Title IX • The Title IX regulations were not changed by the VAWA regulations • VAWA amends only the Clery Act, which is a separate statute. The requirements of Title IX, including those set forth in the April 4, 2011 Dear Colleague Letter on sexual violence, remain unchanged, and schools must comply with them as before (Also see OCR Title IX FAQs)

50. Clery Act and Title IX • Schools’ obligations under the Clery Act (Title IV) are centered around collecting and disclosing crime statistics and creating campus security and crime prevention policies • Schools’ obligations under Title IX are centered around ensuring that students are not discriminated against on the basis of sex in the school’s education programs and activities. Sexual harassment, including sexual violence is a form of sex discrimination • VAWA fills in the space between Clery and Title IX - Protect rights of the individual • 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) Clery and Title IX DO NOT conflict or contradict each other!