Introduction

How colleges and universities confront campus crime changed forever with the April 5, 1986 murder of Jeanne Ann Clery in her Lehigh University residence hall room. Clery’s parents, Howard & Connie, soon discovered a history of campus violence and security problems students and parents hadn’t been told about not only at Lehigh but at schools across the United States.

The Clery family, joining with other families who had experienced campus violence, spearheaded a successful effort, first in Pennsylvania then in other states like California and Tennessee, to enact laws that require institutions of higher education, both public and private, to report campus crime statistics. The Clerys also founded a non-profit victim assistance and advocacy organization, Security On Campus, Inc., in 1987 using money from a settlement with Lehigh University.

Eventually their crusade reached the federal level and the Crime Awareness and Campus Security Act of 1990 (Title II of Public Law 101-542) was signed into law by President George H.W. Bush on November 8, 1990. For the first time, students and their parents had easy access to campus crime information when deciding where to go to school and, most importantly, to use when deciding what safety precautions to take once enrolled.

All institutions, both public and private, eligible to participate in any student aid program under Title IV of the Higher Education Act of 1965 are subject to these reporting requirements. The U.S. Department of Education (DOE) enforces the Act.

The Act has since been amended several times, most notably in 1998 to expand the reporting requirements and rename the law in memory of the student who inspired it as the Jeanne Clery Disclosure of Campus Security Policy and Campus Crime Statistics Act. The Family Educational Rights and Privacy Act (FERPA) was also amended that year to permit the release of certain student disciplinary records involving crimes of violence or non-forcible sex offenses.

Additionally, in 2000 Congress adopted legislation requiring the tracking and public disclosure of information about registered sex offenders who are working or studying on college and university campuses. The Campus Sex Crimes Prevention Act (section 1601 of Public Law 106-386) amended the Clery Act, the federal Jacob Wetterling Act that contains Megan’s Law, and FERPA to effect these changes.

Jeanne Clery Disclosure of Campus Security Policy and Campus Crime Statistics Act

Under the Jeanne Clery Act, each institution must publish an annual campus security report every year by October 1^st that contains crime statistics for the three most recent calendar years. The report must also contain certain security policy statements, including sexual assault policies which assure basic victims’ rights, details about the law enforcement authority of campus security officers and where students should go to report crimes.

The report must be made available automatically to all current students and employees, and prospective students and employees are to be notified of its existence and afforded an opportunity to request a copy.

Under regulations published by the DOE in 1999, schools can comply with the annual report obligation using an internet web site so long as the required recipients are notified and provided the exact internet address where the report can be found and afforded the opportunity to request a paper copy. This direct notice can be provided by campus, postal, or electronic mail. The notice itself can not be made on the internet.

Each institution’s crime statistics are to be reported in the following seven major categories, with several sub-categories: 1.) Criminal Homicide broken down by a.) Murder and Nonnegligent Manslaughter and b.) Negligent manslaughter; 2.) Sex Offenses broken down by a.) Forcible Sex Offenses (including rape) and b.) Nonforcible Sex Offenses; 3.) Robbery; 4.) Aggravated Assault; 5.) Burglary; 6.) Motor Vehicle Theft; and 7.) Arson.

Schools are also required to report the following three types of incidents if they result in either an arrest or disciplinary referral: 1.) Liquor Law Violations; 2.) Drug Law Violations; and 3.) Illegal Weapons Possession. If both an arrest and referral are made, only the arrest is counted.

In order to ensure uniformity from state-to-state, and between individual schools, each institution must use the guidelines and definitions found in the Federal Bureau of Investigation’s Uniform Crime Reporting program.

The statistics are also broken down geographically into “on campus,” “residential facilities for students on campus,” “noncampus buildings,” or “on public property,” such as streets and sidewalks immediately adjacent to or running through the campus. Schools can, but do not have to, use a map to denote these areas.

Prior to the 1998 amendments, one of the major problems with the annual crime statistics had been the exclusion of crimes occurring on public streets and sidewalks running between campus buildings or immediately around the periphery of campus. This had been an issue especially at schools in an urban setting. The original intent of Congress had been to exclude major highways and other areas unrelated to the campus, but the law had been interpreted by many schools and the DOE to exclude areas most people considered to be a part of the campus — areas adjacent to the campus where there is frequent student pedestrian activity.

The law now mandates that crime statistics published by schools in their annual report must include public property areas — specifically streets, sidewalks, and parking garages — inside the campus and immediately adjacent to it. As was the intent when the law was first enacted, only major thoroughfares like interstate highways are excluded.

Properties owned by the institution but operated by a third party, such as a food vendor, must be included as well. In the past, some schools had excluded this type of property.

The report must also indicate if any of the reported incidents, or any other crime involving bodily injury, was a “hate crime.” The hate crimes reported must be broken down by the following categories of prejudice: race, gender, religion, sexual orientation, ethnicity or disability.

Schools must gather these crime statistics from campus police or security, local law enforcement, and other school officials who have “significant responsibility for student and campus activities” such as student judicial affairs directors.

Although non-law enforcement school officials with “significant responsibility for student and campus activities” have been required to report statistics and make timely warnings since the regulations implementing the original law took effect in 1994, the current rules strongly reinforce this requirement. In the past, some schools ignored this requirement and reported only police statistics.

The regulations specify that these “campus activities” should include, but not be limited to, “student housing ... and campus judicial proceedings.” Additional guidance offered in a “preamble” before the rules indicates that “a dean of students ... a director of athletics, team coach, and faculty advisor to a student group” would be required to report, but, due to the numerous titles currently in use across the country, it does not specify exact job titles.

The DOE believes that the current “definition and guidance reflect the reality that on college campuses, officials who are not police officials or acting as event security at student or campus events nevertheless are responsible for students’ or campus security.”

This means that schools cannot merely report their campus police or security office’s crime statistics without at least making an effort to collect statistics from other offices on campus that may have dealt with a crime, such as the student conduct office. Schools must also make and document a “good faith” effort to obtain statistics from local law enforcement agencies.

Professional mental health and religious counselors are exempt from all reporting obligations when functioning in those capacities, but they may refer patients to a confidential reporting system (which the school must indicate whether or not it has). In previous years, the DOE had exempted “counselors” from timely warnings obligations, but had required them to report statistics — although many schools never did so.

Professional mental health and pastoral counselors were exempted from reporting because of a 1998 change in the law that specifically prohibits the redisclosure of any “privileged information.” Some counselors had argued that campus officials were requiring them to disclose detailed information to tabulate the statistics, and if victims knew that this might get out, they would be reluctant to seek out counseling services.

A copy of the statistics must also be provided to the U.S. Department of Education for inclusion in a database that will be distributed to the public on a DOE Web site.

In addition to the crime statistics, one of the most significant reporting obligations under the Act is the public crime log that all schools — including private institutions — with a police or security department are required to maintain. Schools are required to disclose in this log “any crime that occurred on campus ... or within the patrol jurisdiction of the campus police or the campus security department and is reported to the campus police or security department.”

Schools that already maintain a police log under state law may use that log to comply with this requirement as long as all of the minimum requirements are met, and they may use state crime definitions in their log. Because the crime log provision took effect in October 1998 — before the DOE had issued regulations — schools were expected to make a “good faith” effort to comply with the requirement before the regulations were issued and should have begun making their logs public at that time.

The log is required to include the “nature, date, time and general location of each crime,” as well as its disposition if known. Incidents are to be included within two business days, but certain limited information may be withheld to protect victim confidentiality, ensure the integrity of ongoing investigations or keep a suspect from fleeing.

Only the most limited information necessary may be withheld, and even then it must be released “once the adverse effect ... is no longer likely to occur.” It does not require the release of names, but a school may include them at their discretion or under a state crime log law.

The log must be available to the public during normal business hours. This means that, in addition to students and employees, the general public — such as parents or members of the local press — may access it. Logs remain open for 60 days and subsequently must be available within two business days of a request. Logs must be kept for a minimum of three years.

Because many students rely on the news media, especially the campus media, for their crime information, media access to and reporting of this log is a critical public safety measure.

Schools also continue to have an obligation to issue “timely warnings” to the campus community if they believe a reported crime poses an ongoing threat to students and employees on campus. Unlike the crime log, this reporting is not limited to a police or security department and should be made in less than two business days. They may be made by e-mail, flyers posted around campus, or through other means.

These warnings, however, are restricted to the list of crimes that schools must report in their annual statistics, and the criteria used by a school for determining what poses a threat can be subjective. Schools do need to embrace the intent of the Act though, and if a potential threat exists they should issue a timely warning.

Chief among the required policy statements, are those dealing with campus sexual assault. Congress enacted the “Campus Sexual Assault Victims’ Bill of Rights” in 1992 as a part of the Higher Education Amendments of 1992 (Public Law: 102-325, section 486(c)). President George Bush signed it into law in July of 1992. This law, a part of the Clery Act, requires that all colleges and universities, both public and private, participating in federal student aid programs afford sexual assault victims certain basic rights:

Accuser and accused must have the same opportunity to have others present.

Both parties shall be informed of the outcome of any disciplinary proceeding.

Survivors shall be informed of their options to notify law enforcement.

Survivors shall be notified of counseling services.

Survivors shall be notified of options for changing academic and living situations.

The late Frank Carrington, then counsel to Security On Campus, Inc., developed this legislation to combat the re-victimization of rape survivors at college campuses across the country who found that many image conscious schools were more concerned about protecting their image than seeing justice done.

Complaints of violations of any Clery Act reporting obligations are to be filed with the DOE's regional office that has jurisdiction for the state where the school allegedly breaking the law is located. Institutions that violate any of the Clery Act’s provisions can be “fined” up to $27,500 per violation by the DOE or face other enforcement action up to suspension from participation in student aid programs.

Family Educational Rights and Privacy Act

For many years, colleges and universities have had their own system of justice apart from the criminal courts. These so-called “campus court” proceedings or internal student disciplinary proceedings have been one of the most criticized methods colleges and universities have used to hide their crime.

While these student disciplinary proceedings often handle matters such as cheating, they also deal with violent student misconduct like sexual assault and hazing. Since 1974, the Family Educational Rights and Privacy Act (FERPA), a federal law designed to protect the confidentiality of student grades and other educational records, has been used by institutions to keep the proceedings of “campus courts” concealed. FERPA is also frequently referred to as the “Buckley Amendment.”

School officials argue that these hearings provide schools and victims with an easier and faster means of dealing with a violent student on campus. Many crime prevention advocates and media organizations argue that keeping these proceedings shrouded denies the parties due process rights and deprives other students of information about campus crime and justice.

In 1998, an amendment — often referred to as the “Foley Amendment” after its sponsor Congressman Mark Foley (R-FL) — was added to FERPA that permits institutions of higher education to disclose the final results of a campus court hearing when the school finds that a student accused of committing a crime of violence or a non-forcible sex offense broke a school rule with respect to that alleged crime. Victim and witness names remain confidential unless they authorize their release in writing.

The law is permissive, meaning schools may but are not required to release the records, and the regulations make it clear that release will be left up to individual school policy or state public records laws. At public schools, this means that the records may be available under a state’s public records law or that a state law may continue to restrict public access. Generally, private schools should be able to release the information, but will not be required to.

Where possible, schools should release this information in order to warn the campus community about possible threats to their safety. Doing so will help other students avoid victimization, and help diminish any possible civil liability that the school may face for failing to warn about any dangers posed by these students, especially those allowed to remain on campus.

According to research compiled by the Student Press Law Center, an Arlington, Va.-based organization that provides legal assistance to student journalists, 26 states and the District of Columbia “appear to be governed exclusively by FERPA,” while 24 states have laws specifically making educational records confidential. Not all of these state laws will necessarily restrict access to disciplinary records, however.

The regulations implementing the “Foley Amendment” took effect in 2000 and allow the release of any “final results” reached on or after Oct. 7, 1998 — the day President Bill Clinton signed this provision into law. The DOE said they did not make the change retroactive to protect the “expectation of students regarding confidentiality of disciplinary proceedings occurring before the effective date of the statute.”

The regulations also make it clear that a school may release the “final results” before any appeals process has been completed and irrespective of any action taken or not taken by the police or criminal courts off-campus. An incident, in fact, need not even have been reported to law enforcement for it to be reportable under this provision.

The rules define “final results” as “a decision or determination, made by an honor court or council, committee, commission or other entity authorized to resolve disciplinary matters within the institution. The disclosure of final results must include only the name of the student, the violation committed and any sanction imposed by the institution against the student.”

The rules also define the term “sanction imposed” as “a description of the disciplinary action taken by the institution, the date of its imposition and its duration.” “Violation committed” means “the institutional rules or code sections that were violated and any essential findings supporting the institution’s conclusion that the violation was committed.”

The rules also permit schools to disclose either a copy of the “final determination” letter sent to the accused student or to include an update in the school’s public crime log.

Additionally, FERPA has never prohibited schools from releasing disciplinary results with all information that might personally identify a student redacted from the records. Some schools, such as the University of California at Davis, have released this type of information for many years.

Campus Sex Crimes Prevention Act

The Campus Sex Crimes Prevention Act (section 1601 of Public Law 106-386) was enacted on October 28, 2000 and provides for the tracking of convicted, registered sex offenders enrolled as students at institutions of higher education, or working or volunteering on campus. It was sponsored by U.S. Senator Jon Kyl (R-AZ) and supported by Security On Campus, Inc.

The Act amended the Jacob Wetterling Crimes Against Children and Sexually Violent Offender Registration Act to require sex offenders already required to register in a State to provide notice, as required under State law, of each institution of higher education in that State at which the person is employed, carries on a vocation, or is a student.

It requires that state procedures ensure that this registration information is promptly made available to law enforcement agencies with jurisdiction where the institutions of higher education are located and that it is entered into appropriate State records or data systems. If a college or university has a police department they must be provided with this information. These changes took effect October 28, 2002. If a state is not in full compliance by September 30, 2003 they risk loss of ten percent of their Byrne Formula Grant Program funding.

CSCPA also amended the Jeanne Clery Disclosure of Campus Security Policy and Campus Crime Statistics Act to require institutions of higher education to issue a statement, in addition to other disclosures required under that Act, advising the campus community where law enforcement agency information provided by a State concerning registered sex offenders who are on campus may be obtained. These changes took effect October 28, 2002 and this notice will be a requirement beginning with the annual Jeanne Clery Act campus security report due October 1, 2003.

Lastly, the Act amended the Family Educational Rights and Privacy Act of 1974 to clarify that nothing in that Act may be construed to prohibit an educational institution from disclosing information provided to the institution concerning registered sex offenders; and requires the Secretary of Education to take appropriate steps to notify educational institutions that disclosure of this information is permitted. This amendment took effect on October 28, 2000.

Conclusion

Students need to be informed about crimes when they happen so that they will be motivated to take action to avoid victimization themselves. While not all students may heed these warnings, those that want to be a part of the campus security process and want to take responsible precautions have the right to know. To deny them this right is dangerous to the student who could be victimized and to the school that is exposed to possible civil liability.

Ensuring that an institution is in full compliance with the requirements of the Clery Act and the CSCPA will help ensure that not only are students and others on campus given the information they need to avoid victimization, it will also help with crime prevention efforts, and avoid needless civil liability issues.