Crime
on college and university campuses is frighteningly widespread. Many thousands of students become
victims of crime every year.
According to the U.S. Department of Education, more than 380,000 serious
crimes were reported on or around college campuses in 1999.
[i]
Students
and others are increasingly using civil lawsuits as a means of seeking justice
in the wake of being victimized at school.
A
common defendant in such suits is the college or university itself. Campus crimes can often be attributed,
at least in part, to inadequate security or to a school’s failure to
follow or enforce its own safety rules.
Recently, courts have held that, like landlords or business owners, universities can have a duty to
implement reasonable measures to protect students from foreseeable criminal
acts.
[ii]
Victims
who sue schools under a negligence theory must, therefore, be able to prove
that the underlying crime was foreseeable.
One
of the most common and effective means of proving foreseeability is prior
crimes evidence.
[iii]
Fortunately for plaintiffs in suits against colleges and universities,
there is a federal statute which compels schools to compile and publish
precisely the types of information which are necessary to make a strong prior
crimes showing. The statute, the
“Jeanne Clery Disclosure of Campus Security Policy and Campus Crime
Statistics Act”
[iv]
(the Clery Act), is tied to participation in federal
financial aid programs, and therefore, applies to most public and private
institutions of higher learning in the country. A thorough understanding of the Clery Act is essential for
effective investigation and discovery in crime-based negligence cases against
colleges or universities.
A
Brutal Crime
On
April 5, 1986, freshman Jeanne Ann Clery was raped and murdered while asleep in
her dorm room at Lehigh University.
The perpetrator, Josoph Henry, was a fellow student who lived off campus. Henry was able to easily enter
Stoughton Hall, Clery’s dormitory.
Although Stoughton’s doors were equipped with automatic locks,
residents had propped open three doors with empty pizza boxes, providing a
convenient entry for both residents and non-residents. Henry was eventually convicted and
sentenced to death.
[v]
Lehigh
University did its own investigation of this brutal crime. It concluded that there had been no
negligence on the school’s part, and that Lehigh’s current safety
policies were sufficient. Howard
and Connie Clery, Jeanne’s parents, responded by suing Lehigh for
negligent security and failure to warn.
The suit eventually settled, but in the process the Clerys learned
disturbing information.
[vi]
The
school administration knew about, but kept from the student body, a significant
history of criminal activity.
Between 1983 and 1986, thirty-eight violent crimes, including rape,
robbery, and assault, had been committed on the Lehigh campus.
[vii]
In
addition, there had been 181 reports of doors being propped open in Stoughton
Hall in the four months before the murder.
[viii]
The
Clerys also discovered that security on the Lehigh campus was inadequate. The school only employed twelve
security guards to monitor and protect 5,400 students. In settling with the Clerys, Lehigh
agreed to make substantial improvements to its campus security.
[ix]
The
Clerys began a nationwide campaign to change laws and force colleges and
universities to disclose information about campus crime. They began their efforts in
Pennsylvania, lobbying for the enactment of a campus crime reporting law. After Pennsylvania adopted the law, the
Clerys turned their attention towards the enactment of a national law. They also created Security On Campus,
Inc., an organization founded on the simple premise that “crime awareness
can prevent campus victimization.”
[x]
The
Clery Act
The
Clery’s efforts bore fruit when on November 8, 1990, President Bush
signed into law the “Student Right-To-Know and Campus Security
Act.” The act was amended
several times in the ensuing years and was eventually named after Jeanne
Clery. Essentially, the act amends
the Higher Education Act of 1965 by requiring that all institutions of higher
learning that participate in federal student aid programs publicly disclose
three years of campus crime statistics and basic security policies.
[xi]
Schools
must issue annual reports which contain crime statistics and other
information. The reports have to
be made available to all current students and school employees. (The report can be published on a
website as long as hard copies are also made available.) Applicants for enrollment or employment
must also be informed about the report and given an opportunity to obtain one.
[xii]
In
the reports, schools must provide statistics on the crimes of murder,
manslaughter, sex offenses, robbery, aggravated assault, burglary, motor
vehicle theft, and arson. The
reports also must include numbers for liquor law violations, drug-related violations,
and incidents of weapons possession if such acts resulted in an arrest or a
referral to the school’s disciplinary process.
[xiii]
The data
must also be grouped into certain geographic categories including “on
campus,” “on campus, in residence halls,” “non-campus
buildings,” and “public property.”
[xiv]
The
statistic cannot identify the victims or the perpetrators.
[xv]
The
annual reports also have to provide information on policy and procedure
matters, including:
Finally, the report must describe a school’s
policies regarding campus sexual assault programs, and it must detail the procedures
to be followed once a sexual assault occurs. Included in this latter element is the requirement that
schools must inform students who become sexual assault victims that they have
the right to report the crime to the local police, as opposed to just pursuing
the case through on-campus disciplinary proceedings.
[xvii]
In
addition to the annual reports, the Clery Act requires schools to produce two
other types of crime reports which could be essential in building the
foreseeability portion of a negligent security case. First, schools must provide “timely reports”
about crimes which are considered to constitute an ongoing threat to other
students and employees. There are
not a lot of specific requirements about what form such reports should take,
other than that they must be timely and published in a manner that will help
prevent similar crimes.
[xviii]
Second,
colleges or universities which maintain a police or security department of any
kind must maintain a daily log recording all crimes occurring within the
department’s patrol jurisdiction which have been reported to the
department. The logs are supposed
to include information such as the nature, date, time, and general location of
each crime, and the disposition of the complaint. Except in limited circumstances involving issues like victim
confidentiality and safety, log entries are to be made open to public
inspection within two days of the receipt of the report.
[xix]
The
U.S. Department of Education has the responsibility of implementing and
enforcing the Clery Act.
Individuals can file administrative complaints with the department if
they believe that schools are violating the act. If a school fails to comply with the act’s
requirements, the department can either issue a civil penalty up to $25,000 per
violation or suspend the school’s federal aid programs.
[xx]
Unfortunately
(at least from a victim’s perspective), the Clery Act expressly states
that it cannot be used to create a civil cause of action against a college or
university, nor can it be used to establish a standard of care.
[xxi]
Despite
these prohibitions, there are still well-established common law causes of
action through which a school can be held liable for things like inadequate
security and failure to warn. It
is in such negligence-based suits that the information produced under the Clery
Act can be a tremendous resource in helping to build a victim’s case.
Trisha Monroe is a second-year law student at
William and Mary School of Law.
She previously served as a legal intern with the National Crime Victim Bar Association. Jim Ferguson serves as the Director of the National Crime Victim Bar Association.
This article originally appeared in the Fall 2001 (vol. 3, no. 2) issue of Victim Advocate published by the National Crime Victim Bar Association.
[i] Campus Crime Policy & Reporting News, Campus Watch, Fall/Winter 2000.
[ii] See,
e.g., Nero v. Kansas State Univ., 861
P.2d 768 (Kan. 1993); Williams v. State, 786 So.2d 927 (La.App. 2nd Cir. 2001).
[iii] See Jeffrey P. Fritz & Daniel P. Hartstein, Prior
Criminal Acts Evidence in Negligent Security Cases, Victim Advocate,
Spring 2000.
[iv] 20 U.S.C. § 1092(f).
[v] Howard & Connie Clery, What Jeanne Didn’t
Know, www.campussafety.org/aboutsoc/didntknow.html.
[vi] Id.
[vii] Clery Act History, www.campussafety.org/congress/cleryhistory.html.
[ix] Id.
[x] Id.
[xi] 20 U.S.C. § 1092(f)(1).
[xii] Id.
[xiii] 20 U.S.C. § 1092(f)(1)(F).
[xiv] 20 U.S.C. § 1092(f)(12).
[xv] 20 U.S.C. § 1092(f)(7).
[xvii] 20 U.S.C. § 1092(f)(8).
[xviii] 20 U.S.C. § 1092(f)(3).
[xix] 20 U.S.C. § 1092(f)(4).
[xx] 20 U.S.C. § 1092(f)(13).