The Clery Act: Requirements and Legal Issues

The Clery Act: Requirements and Legal Issues

July 31, 2019
The Clery Act: Requirements and Legal Issues
Colleges, universities, and other institutions of higher
by the institution, as well as any property frequently used
education (IHEs) face several federal legal requirements
by students that is owned or controlled by the institution
that pertain to the safety and security of students. One
and supports its educational purposes.
statute that addresses such issues is the Jeanne Clery
Disclosure of Campus Security Policy and Campus Crime
Campus Alerts and Information Regarding
Statistics Act (Clery Act). The Clery Act applies to all
Criminal Activity
domestic IHEs that participate in Title IV of the Higher
IHEs must also issue timely alerts to the campus
Education Act’s student financial assistance programs. The
community of Clery Act-specified crimes that are reported
Clery Act requires covered IHEs to publish a report (by
to campus security or local police and constitute a threat to
October 1 of each year) disclosing campus crime statistics
students and employees. The alerts must withhold the
and campus security policies. The Department of Education
names of victims as confidential. In the case of an
(ED) has promulgated regulations implementing the Clery
immediate threat to the health or safety of students or
Act. ED’s Office of Federal Student Aid conducts reviews
employees, an institution must follow its emergency
to evaluate compliance with the statute and imposes fines
notification procedures (discussed below).
on institutions for noncompliance.
If an institution maintains a police or security department,
Crime Statistics
then that department must keep a daily security log that
The Clery Act instructs covered IHEs to publish an annual
records all crimes reported to it. That log must be open to
security report (ASR) containing crime statistics for the past
public inspection. The log must include all covered
three years. IHEs must share the ASR with current students
incidents within the patrol jurisdiction of the campus police.
and employees, as well as with any applicants for
enrollment or employment upon request (IHEs must also
Who Are Campus Security Authorities?
submit a copy to ED).
ASR’s and crime alerts are only required to include covered
incidents reported to local police agencies or “campus
Reportable Crimes
security authorities.” Clery Act regulations provide that
Incidents that must be published in an IHE’s ASR include
campus security authorities include campus police or
various criminal offenses reported to campus security
security departments; individuals entrusted with
authorities or local police agencies, including murder, sex
responsibility for campus security; any individual or entity
offenses, robbery, aggravated assault, burglary, auto theft,
specified in a statement of campus security policy to which
manslaughter, and arson. In addition, an ASR must include
students and employees should report criminal offenses;
incidents reported to campus security or local police if the
and any official who has significant responsibility for
victim of any of the aforementioned crimes, or the victim of
student and campus activities, including student housing or
any of a broader group of crimes (such as larceny-theft,
discipline. But pastoral or professional counselors do not
simple assault, intimidation, destruction of property, or
qualify when acting in that capacity.
crimes involving bodily injury to a person) was selected
based on race, gender, religion, national origin, sexual
Campus Policies
orientation, gender identity, ethnicity, or disability. A
IHEs must also include in their ASR a statement on a
school’s ASR must also include arrests (and referrals for
number of school policies.
campus disciplinary action) for liquor and drug-related
violations, as well as weapons possession. Finally, under
General Policies
amendments under the Violence Against Women
IHEs must provide a statement on the procedures available
Reauthorization Act of 2013 (VAWA 2013), an ASR must
for students to report crimes (including how to do so on a
include incidents of domestic violence, dating violence, and
voluntary and confidential basis) and the policies the IHE
stalking reported to campus security authorities or local
has concerning its response to these reports; the titles of
police. The statistics that must be published under the Clery
persons or organizations that students and employees
Act do not include the identities of persons accused of
should report criminal offenses to; security and access to
committing a crime or the victims of those crimes.
campus facilities; law enforcement authority on campus;
and a description of programs geared toward informing
Clery Geography
employees and students of security procedures and the
Incidents must be collected and included in the ASR if they
prevention of crimes.
occur on campus, on public property within or immediately
adjacent to the school, or on certain “noncampus buildings
The ASR also must include a statement of policy on the
or property.” The latter includes property owned or
monitoring through local police of criminal activity at off-
controlled by a student organization officially recognized
campus student groups; underage drinking and illegal drug
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The Clery Act: Requirements and Legal Issues
possession, use, or sale; and where to find information
dating violence, sexual assault, or stalking must be provided
about registered sex offenders.
with a written explanation of their rights.
An ASR also must include a statement of policies on
Enforcement
immediate emergency response and evacuation procedures.
ED’s Office of Federal Student Aid enforces the Clery Act
These must include procedures to notify the campus
(and its attendant regulations) by conducting reviews of
community immediately during a significant emergency or
institutions’ compliance with the statute’s requirements.
dangerous situation involving an immediate threat to the
Such reviews may be triggered in several ways, such as
health or safety of students or staff on campus. Finally,
through receipt of a complaint or significant media
institutions that provide on-campus housing for students
attention. When a review is completed, ED issues a
must provide a policy statement on missing student
Program Review Report that describes noncompliance
notification procedures.
concerns for an IHE and offers it an opportunity to respond.
After considering all the information it receives, ED issues
VAWA Offenses
a Final Program Review Determination Letter. Based on
VAWA 2013 amended the Clery Act to require that IHEs
these findings, ED may issue fines for violating the Clery
include a statement of policy in their ASRs about programs
Act and its regulatory requirements.
to prevent domestic violence, dating violence, sexual
assault, and stalking. The statement must also address
Legal Considerations for Congress
awareness programs for incoming students and employees
Congress has addressed the safety and security of
(as well as ongoing awareness campaigns for students and
postsecondary students through a number of statutes, such
faculty) that define these terms. The ASR must also include
as the Clery Act, that impose obligations on institutions of
the definition of consent; safe options for bystander
higher education. The responsibilities of an IHE under the
intervention; and recognizing warning signs of abusive
Clery Act must be understood in relationship to other
conduct.
relevant federal statutes that could impose different
requirements regarding a school’s response to the same
The ASR also must include a statement of policy on an
class of incidents. For instance, the Family Educational
IHE’s procedures to address such incidents. This includes
Rights and Privacy Act (FERPA) limits the disclosure of
the standard of evidence used during any disciplinary
student education records. But the Clery Act and its
hearing; possible sanctions or protective measures that may
regulations require a clear statement of policy that
be imposed following a determination that the conduct
addresses procedures regarding disciplinary action for
occurred; and procedures victims should follow if an
VAWA 2013 offenses, which include the disclosure to both
offense has occurred. The latter includes information about
an accuser and the accused of the results of any proceeding,
to whom an offense should be reported; as well as a
as well as equal access to any information used during
victim’s option to notify law enforcement authorities, be
disciplinary meetings and hearings. Clery Act regulations
assisted in doing so by campus authorities, and decline to
provide that compliance with these provisions does not
notify authorities if the victim so chooses.
constitute a FERPA violation.
In addition, the statement of policy must address specific
Likewise, Title IX of the Education Amendments of 1972
procedures on disciplinary actions in cases of alleged
(Title IX) requires schools to respond appropriately to
domestic violence, dating violence, sexual assault, or
incidents of sexual harassment and assault. At times, certain
stalking. The policy must include a “clear statement” that
Clery Act crimes can also constitute sexual harassment or
the accuser and accused have the same opportunity to have
assault under Title IX, meaning that IHEs may have
others present during a disciplinary proceeding; that both
overlapping responsibilities under both statutes regarding
accuser and accused will receive notice of the outcome of a
the same incident (for more on Title IX and sexual
proceeding and appeal procedures; and that such
harassment, see CRS Report R45685, Title IX and Sexual
proceedings shall be fair, prompt, and impartial and be
Harassment: Private Rights of Action, Administrative
conducted by officials who have received training on the
Enforcement, and Proposed Regulations, by Jared P. Cole
safety of victims during the investigation and hearing
and Christine J. Back).
process. And Clery Act regulations provide that
proceedings must be conducted in a way that provides equal
Several bills to amend the Clery Act have been introduced
access to the accuser and accused of any information used
in the 116th Congress. Proposals include increasing the
during a disciplinary meeting or hearing.
penalty for a violation to $150,000; requiring IHEs to report
on the number of selected crimes that involved a victim
The policy statement must also address information on how
with a disability; and providing that IHEs adopt policies to
the institution will ensure the confidentiality of victims;
improve their responses to hate crimes.
written notification for students and employees on support
systems for the campus community; and written notification
Another consideration for Congress is how the directives of
for victims about options and assistance, such as altering
the Clery Act are effectuated. While ED enforces the statute
academic and living situations.
and can issue fines for noncompliance, the law contains no
provision conferring private individuals, including students,
Finally, under the statute, students or employees who report
with a right to bring suit in federal court against an IHE
to the IHE that they are victims of domestic violence,
challenging its compliance with the Clery Act.
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The Clery Act: Requirements and Legal Issues

IF11277
Jared P. Cole, Legislative Attorney

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