The Clery Act and Postsecondary Institutions: Requirements and Enforcement

The Clery Act and Postsecondary Institutions: Requirements and Enforcement

February 27, 2024
The Clery Act and Postsecondary Institutions: Requirements
and Enforcement
The federal government requires colleges and universities
of crime reports that were “unfounded” during each of the
to implement several institutional policies aimed at
previous three years.
ensuring the safety and security of their students. One key
federal statute that applies to postsecondary institutions is
ASRs must include incidents if they occur within “Clery
the Jeanne Clery Disclosure of Campus Security Policy and
geography,” which means on campus, on public property
Campus Crime Statistics Act (Clery Act), codified in
within or immediately adjacent to the school, or on certain
Section 485(f) of the Higher Education Act (HEA). The
“noncampus buildings or property,” including property
Clery Act applies to all domestic institutions of higher
owned or controlled by an officially recognized student
education (IHEs) that participate in HEA Title IV federal
organization, such as officially recognized sorority or
student aid programs. The law requires covered IHEs to
fraternity-owned chapter houses.
publish a report, by October 1 of each year, disclosing
campus crime statistics and campus security policies. The
In compiling the incidents for its crime report, an IHE must
Department of Education (ED) has promulgated regulations
make a reasonable effort to collect statistics and is
implementing the law.
permitted to rely on information supplied by a local or state
police agency. If an IHE makes a good-faith effort to do so,
Campus Crime Statistics
it is not to be held responsible for the failure of a local
The Clery Act requires covered IHEs to publish an annual
police agency to supply the necessary statistics.
security report (ASR) containing campus crime statistics for
the preceding three years. Covered IHEs must share the
If an IHE maintains a police or security department, then
ASRs with current students and employees, as well as with
that department must keep a daily security log that records
any applicants for enrollment or employment upon request.
all crimes reported within its patrol jurisdiction, as well as
within the IHE’s “Clery geography.” That log must be open
Incidents that a covered IHE must disclose in its ASR
to public inspection and include the date, time, location, and
include various crimes that are reported to, or brought to the
nature of each crime.
attentions of, campus security authorities or local police
agencies, including murder, sex offenses, robbery,
IHEs must also issue timely alerts to the campus
aggravated assault, burglary, motor vehicle theft,
community of crimes covered by the Clery Act that are
manslaughter, and arson. This includes reports of all alleged
reported to campus security or local police and that
criminal incidents, rather than only crimes for which a
constitute a threat to students and employees. The alerts
finding of guilt has been made.
must withhold the names of victims as confidential.
In addition, ASRs must include alleged criminal offenses
Campus Security Policies
reported to campus security or local police if the victim of
An IHE’s ASR must describe a number of school policies,
any of the aforementioned crimes or a broader group of
including procedures available for students and others to
crimes (such as larceny-theft, simple assault, intimidation,
report crimes (and how to do so on a voluntary and
destruction of property, or crimes involving bodily injury to
confidential basis) and the IHE’s policies concerning its
a person) was selected based on race, gender, religion,
response to these reports. The ASR must also include the
national origin, sexual orientation, gender identity,
titles of persons or organizations to whom students and
ethnicity, or disability. The ASR must also include arrests
employees should report criminal offenses; policies
(and referrals for campus disciplinary action) for liquor law
regarding security and access to campus facilities and
violations and drug-related violations, as well as weapons
residences and security considerations used in facilities
possession. Finally, ASRs must include alleged incidents of
maintenance; policies regarding law enforcement authority
domestic violence, dating violence, and stalking reported to
on campus and agreements with state and local law
campus security authorities or local police. The statistics
enforcement agencies; a description of programs geared
that must be published under the Clery Act must not
toward informing employees and students of security
identify persons accused of crimes or the victims of crimes.
procedures and the prevention of crimes; policies regarding
the enforcement of underage drinking laws and the
Covered IHEs may withhold, or later remove, reported
possession, use, or sale of illegal drugs; and a statement on
crimes from their statistics in the “rare situation” where a
where to find information about registered sex offenders.
sworn or commissioned law enforcement officer has
investigated and formally determined that a crime report
ASRs must also include a statement of policies on
was false. IHEs must disclose in their ASR the total number
immediate emergency response and evacuation procedures.
IHEs that provide on-campus housing for students must
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The Clery Act and Postsecondary Institutions: Requirements and Enforcement
provide a policy statement on missing student notification
dean. More recently, Liberty University reported that ED
procedures.
has preliminarily assessed a fine against it for alleged Clery
Act violations pertaining to sexual assaults that would set a
IHEs must develop and include in their ASR a statement of
new record ($37.5 million), though this investigation is
policy regarding programs to prevent and raise awareness
ongoing. On January 26, 2024, Chairs of the House
of dating violence, sexual assault, domestic violence, and
Committee on Education and the Workforce and House
stalking. This statement shall include the definition of
Committee on Oversight and Accountability requested a
consent and a description of safe options for bystander
briefing from ED on this proposed fine.
intervention. Statements must include information
regarding procedures victims should follow, including
ED also provides technical assistance and guidance to IHEs
(1) the importance of preserving necessary evidence; (2) to
to facilitate compliance with Clery Act requirements,
whom an offense should be reported; and (3) a victim’s
including training sessions, webinars, and resources to aid
options to notify law enforcement authorities, to be assisted
in understanding and implementing the law’s provisions.
in doing so by campus authorities, and to decline to notify
ED maintains the Campus Safety and Security Data
authorities if the victim so chooses. Statements must
Analysis Cutting Tool, an online resource that assists IHEs
indicate how the IHE will protect confidentiality, as well as
and the public in analyzing institutional data. The tool
available accommodations and protective measures.
provides rapid customized reports for public inquiries
relating to campus crime data.
ASRs must have a statement of policy that addresses the
disciplinary procedures used to address incidents of alleged
Selected Bills in the 117th and 118th
dating violence, domestic violence, stalking, and sexual
Congresses
assault. This statement includes the evidentiary standard
In the 117th and 118th Congresses, legislation has been
used during any disciplinary hearing; possible sanctions or
introduced that would amend the Clery Act to add
protective measures that may be imposed following a
provisions relating to sexual violence, antisemitic incidents,
determination that the conduct occurred; that the “accuser
and assurances for individuals with disabilities. In the 117th
and the accused” have the same opportunity to have others
Congress, the Campus Accountability and Safety Act (H.R.
present during a disciplinary proceeding; that both accuser
9136/S. 5047) would have amended the Clery Act to
and accused will receive notice of the outcome of a
require the reporting of additional information on campus
proceeding and appeal procedures; and that such
sexual harassment, sexual assault, and other forms of sexual
proceedings shall be fair, prompt, and impartial and be
violence. It also would have authorized ED to administer
conducted by officials who have received training on the
grants of no more than $500,000 to address and prevent
safety of alleged victims during the investigation and
domestic violence, dating violence, sexual assault, sexual
hearing process. Proceedings must be conducted in a way
harassment, and stalking on campus.
that provides equal access to the accuser and accused of any
information used during a disciplinary meeting or hearing.
In the 118th Congress, the Ending Subsidies for Pro-
Terrorist Activity on Campus Act (H.R. 6419/S. 3184)
Enforcement and Technical Assistance
would amend the Clery Act to require IHEs to report on
ED’s Office of Federal Student Aid enforces the Clery Act
antisemitic incidents specifically, as incidents involving
and conducts reviews to evaluate compliance with the
antisemitism are not reported separately from other hate
statute. ED selects IHEs for review by considering factors
crimes based on shared ancestry or ethnic characteristics,
such as prior violations, complaints, and media reports.
and to publish a detailed plan of action for combating
antisemitism on campus. Each IHE would have to submit a
In cases of noncompliance, ED has the authority to impose
report on these efforts, which would be compiled by ED in
sanctions on IHEs for failing to adhere to Clery Act
a report to Congress.
mandates. Sanctions may include fines, limitations on
federal financial aid, or even suspension or termination of
Also in the 118th Congress, the Safe Equitable Campus
an IHE’s eligibility to participate in federal student aid
Resources and Education Act of 2023 (H.R. 2421/S. 1070)
programs. ED may also enter into voluntary resolution
would amend the Clery Act to mandate more accessible
agreements with IHEs found to be in violation, outlining
ASR formats for individuals with disabilities, including
corrective actions to address deficiencies and prevent future
those who are blind or deaf or have cognitive, intellectual,
non-compliance.
or communication disabilities. Under the proposals, ASRs
would be required to include a description of policies to
As of January 25, 2024, the maximum fine per violation is
ensure that individuals with disabilities are included in
$69,733. The Clery Act fine amount is adjusted annually
emergency response and evacuation procedures, and that
for inflation under the Federal Civil Penalties Inflation
campus security personnel and others receive appropriate
Adjustment Act Improvements Act. IHEs can accrue
training for working with these individuals.
multiple maximum fines based on the number of confirmed
violations. The largest Clery Act fine in history ($4.5
Jared P. Cole, Legislative Attorney
million) was levied against Michigan State University in
Adam K. Edgerton, Analyst in Education Policy
2019 for systematically failing to prevent sexual abuse
committed by Larry Nassar, a physician in the athletics
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department, as well as other violations involving a former

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The Clery Act and Postsecondary Institutions: Requirements and Enforcement

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