20 USC § 1092(f); 34 CFR 668.47 [July 1, 1994-June 30, 2000]
October 2, 2000
Period Covered By Complaint: Calendar Years 1996, 1997, 1998
Campus Security Report Due: September 1, 1999
Brought By
Security On Campus, Inc.
601 South Henderson Road, Suite 205
King Of Prussia, PA 19406-3596
http://campussafety.org/
Filed With
U.S. Dept. of Ed. Region IX Ofc.
50 United Nations Plaza, Room 266
San Francisco, CA 94102-4987
http://www.ed.gov/
Introduction
On September 24th and 25th of this year "The Sacramento Bee" (http://www.sacbee.com/) newspaper published a series of articles entitled "Rape: An invisible epidemic" by reporters Terri Hardy and Matthew Barrows alleging various campus crime reporting deficiencies under the "Jeanne Clery Disclosure of Campus Security Policy and Campus Crime Statistics Act" at the Davis campus of the University of California. Copies of these articles are enclosed for your review.
This complaint summarizes those allegations and addresses certain of the institution's interpretations of the Act that we believe to be incorrect. We believe that the seriousness of the allegations warrants a prompt, on-site program review of past and present compliance with the Act and the relevant implementing regulations.
Additionally, in response to these allegations the administration of the Davis campus has also written to the U.S. Department of Education headquarters in Washington, DC encouraging "the Department to visit our campus to review our crime reporting practices." We hope that you will be able to do this in the very near future.
Jurisdiction
The U.S. Department of Education's Region IX office has jurisdiction over this matter pursuant to "Dear Colleague" letter GEN-96-11 issued in May of 1996. In relevant part it states that an "individual desiring to file a complaint alleging that an institution is not complying with these regulations should contact the Director of the Regional Office that serves the State in which the institution is located."
Crime Statistics Not Accurately Disclosed
The University of California, Davis allegedly "omitted sexual assaults reported to university sources other than police" in their annual campus crime statistics according to the September 24th article "UC keeps sex crimes in shadows." Although not alleged, it is possible that crimes other than sexual assaults were also omitted.
According to "UC Davis touts its charms, downplays its violence" which ran the next day:
At UC Davis, student victims treated for sexual assault at hospitals, or who reported a crime to a counselor, a dorm adviser or a coach, have not been counted unless they also pursued the matter with campus police. Even if the student reported the crime to the campus administration and internal disciplinary action was taken, the crime wasn't included in the campus's Clery report.
The disclosure in annual statistics of incidents reported to all campus security authorities, defined as "any official of the institution who has significant responsibility for student and campus activities" not just campus police, was at the time of the disclosures in question required by 34 CFR 668.47(a)(6)(i).
In not disclosing these statistics the administration of the Davis campus is relying upon guidance included in the "preamble" of the original Campus Security Act regulations published in the April 29, 1994 "Federal Register" which on page 22318 states:
The occurrence of a crime on campus need not be disclosed to students and staff under these regulations unless the appropriate law enforcement officials conclude that the crime did occur with the same degree of certainty they would require for purposes of reporting under the FBI's Uniform Crime Reporting System.
In a May 11, 2000 letter written to Terri Hardy, one of the authors of the "Sacramento Bee" articles, Stan Nosek, the institution's Information Practices Coordinator cites this guidance extensively. The institution's police department also seems to rely heavily upon it, Capt. Michael Corkery, for example, said in the series:
If we can't talk to the victim, we can't report it as a crime.
We believe, however, that the interpretation applied by the administration of the Davis campus is in error.
Given the totality of guidance provided by the Department we interpret the guidance they cite to mean that a campus law enforcement unit may review information provided by other campus security authorities to determine if the necessary elements of each crime are met not that they are required to interview witnesses or otherwise adhere to UCR standards exclusive to police agencies. Any other interpretation would render the requirement that other officials report effectively useless and can not be supported.
Evidence of our interpretation is found in "Dear Colleague" letter GEN-96-11 which makes it clear that:
An institution is not relieved of compliance with the reporting requirements of the campus security regulations when the institution refers a matter to a disciplinary committee, rather than to the institution's law enforcement unit or directly to the local authorities.
It is also evidenced in the Campus Security Act program reviews undertaken by the Department since 1996. The Department, for example, cited Miami University of Ohio for failing to collect this information in a 1997 Program Review (PRCN 199740814014):
The institution failed to properly gather the required crime statistics from all pertinent sources. All campus officials with significant responsibility for student and campus activities are not surveyed for data for possible inclusion in the report, as required by 34 CFR 668.47(a)(6).
Here the Department is clearly requiring institutions to survey their staff, not individual victims who may have reported an incident to one of those staff members.
The most recent implementing regulations, published in the Federal Register on November 1, 1999 (vol. 64, no. 210), also give credence to our interpretation:
We reiterate the language of Sec. 668.46(c)(7) that requires an institution to use UCR guidance when defining and classifying crimes.
The FBI's Uniform Crime Reporting (UCR) handbooks, both the 1984 standard edition and the National Incident Based Reporting (NIBRS) edition, serve as the source of the crime definitions used by the Clery Act's implementing regulations. That is straightforward and not at issue here. What "classifying" means here, however, is crucial.
"Classifying is determining the proper crime categories in which to report offenses in UCR," according to the handbook. This type of guidance would include determining which crime to report if more than one type of crime happened during a single incident.
Here it is important to note that the discussion in the federal register refers to commenters asking "that the preamble make clear than an institution must use both the UCR definitions and standards when reporting crime." The term "standards" was not included in the response.
The Secretary clearly decided not to require that institutions use the UCR "standards" instead requiring them to use only the guidance regarding definitions and proper classification.
Previous regulatory guidance issued in 1994 which stated that institutions should use UCR definitions had not proven sufficient to address concerns about certain situations such as when more than one crime happens during a single incident. The regulations themselves never required, and do not now, the use of UCR standards however.
Use of the UCR "standards" which are designed exclusively for law enforcement agencies would not be appropriate in this context where additional institutional officials are clearly being required to report. We believe that this careful choice of words was deliberate and should be adhered to.
Nosek also argues that the annual campus crime statistics need not include crimes reported to institutional personnel who have "significant counseling responsibilities." In justifying the exclusion of incidents reported to campus counselors he cites 34 CFR 668.47(f) which provides in relevant part that the term "campus security authority" includes:
An official of an institution who has significant responsibility for student and campus activities, but does not have significant counseling responsibilities.
Guidance contained in "Dear Colleague" letter GEN-96-11, however, makes it clear that the Secretary of Education only intended this exception to apply to the "timely warning" requirements and not the annual statistics:
Campus officials with "significant counseling responsibility," however, are not subject to the timely warning requirement…This exception to the timely warning requirement does not apply to the institution's statistical reporting obligations. All officials with significant responsibility for campus and student activities are required to provide information for preparation of the annual statistical report.
This view is also clearly articulated in the Campus Security Act program reviews undertaken by the Department since 1996. The Department, for example, cited Moorhead State University (Minnesota State University, Moorhead) for failing to collect this information in a 1996 Program Review (PRCN 199630513007):
For example, occurrences of covered crimes reported to the "MSU Counseling Center" were not collected and included in the annual campus security reports' statistics. Officials of the institution involved in student counseling are not excluded from the institution's statistical reporting obligations (counselors are excluded only from the timely warning requirements of 34 CFR 668.47(e)).
Additionally, in 1998 the American Psychological Association successfully asked the Congress to amend the campus security reporting obligations to secure an exception for "privileged" information so that professional psychological counselors would no longer be required to report any information. The new guidance found in the current implementing regulations detailing that professional and pastoral counselors do not have to report is based on this amendment.
If there had been no obligation for institutions to report statistics known to campus counselors in the past, as the institution argues, there would have been no need for either the statutory or regulatory amendments.
Conclusion
The allegations raised by the "Sacramento Bee" series "Rape: An invisible epidemic" are very serious and we hope that you will act on them quickly. Students are put at unnecessary risk when information about campus crime is kept from them in this manner because they are unable to make informed decisions about precautions that they may choose to take.
This situation is especially serious because other schools in California and across the country will be closely watching. If this institution is permitted to exclude incidents based on the criteria they have established, other schools will likely follow suit, thus weakening this critically important law.
In addition to copies of the newspaper articles, copies of correspondence from the institution are also enclosed for your reference. We believe, though, that a full review of institutional records, including the annual campus security reports, will be necessary to resolve this complaint. The newspaper reporters did not obtain access to all of the records that would be required to fully review all compliance issues, but the Department would be permitted to review these records as part of a full on-site program review.
__________________________________________
S. Daniel Carter, Vice President
Security On Campus, Inc.