Complying with the Clery Act

In 2019 the US Department of Education found a northern California university in violation of the Clery Act. They were ordered to pay $2.35 million. In 2017 alone, ten universities were fined for violating the Clery Act. Organizations that fail to provide proper safeguards can lose federal funding, absorb reputation damage and sometimes endanger students and staff.

As of 2021, the Clery Handbook has been replaced by the Clery Act Appendix, creating flexibility but more responsibilities regarding compliance.

What is the Clery Act

The Clery Act is a federal law for federally funded US colleges to reveal crime and other information on and around campus by October 1 of each year. It must also detail the specific campus safety and security-related policies and procedures that are in place.  Enacted in 1990 it has been amended and strengthened by other acts including the Violence Against Women Reauthorization Act (VAWA). Compliance is monitored by the United States Department of Education.

Clery Geography
 

In the Annual Security Report, institutions are required to record crimes by location that together comprise an institution’s Clery Geography.

Clery Geography refers to on-campus, non-campus buildings or properties and public property. On-campus refers to an institution’s building or property owned or controlled in that geographic area. It also includes institution owned buildings or properties reasonably contiguous to the area owned by the institution but controlled by another person frequented by students such as food or retail vendors.

For clarity, institutions should determine which buildings, facilities, parking lots, and real estate are included in the definition of on-campus. Branch campus locations outside a reasonably contiguous area are a separate campus for reporting purposes.

Non-campus buildings or properties are buildings or properties owned or controlled by a recognized student organization. in support of the institution’s educational purposes, frequented by students, and not within the contiguous geographic area of the institution. Examples include official fraternities and sororities, institution-owned off-campus bookstores and university owned apartment buildings.

Public Property refers to all public property within the campus, or immediately adjacent and accessible from campus streets, sidewalks, and parking lots.

Although the Clery Act and Title IX concepts overlap, they have separate obligations for institutions. For example, the 2020 Title IX regulations do not dictate a geographical perimeter on an institution’s responsibilities except within the United States.

Filing a Clery Complaint

A Clery complaint records how students or staff feels the college has failed to uphold the Clery Act. Complainants can either be named or anonymous, do not require a lawyer and can include appendices with supporting documents such as the crime log.  Survivors do not have to repeat their exposure of sexual misconduct in the Clery complaint.  Clery complaints have no statute of limitation.

The National Incident-Based Reporting System

The FBI’s National Incident-Based Reporting System (NIBRS) captures each crime, categorized with definitions and details such as victim-offender relationship, place, time of occurrence, the crime classification and whether the incident was cleared. NIBRS is where universities, colleges, state, tribal and federal law enforcement voluntarily chronicle facts on crimes brought to their attention.

For Clery Act purposes, an institution must compile crime statistics using the definitions based on the NIBRS definition, not the campus definition. Combined, CLERY and NIBRS information collection feeds institutions with a variety of data-driven decisions to support community policing.

Complying with the Clery Act

Annual Security Report

The Department of Education requires an Annual Security Report (ASR) from all federally funded US colleges.

To comply, institutions must publish a detailed ASR that includes:
 

• Campus crime statistics
• A Contact list to report Clery crimes
• Policies that encourage prompt, accurate reporting
• Confidential witness reporting procedures for criminal actions and campus emergencies
• Policies on security of and access to campus facilities
• Policies on enforcement authority of security personnel
• Working relationship of campus security with State and local police
• Policies for the security, maintenance and access to campus facilities and residencies
• Campus security and crime prevention procedures
• Policies on monitoring and recording off-campus crimes
• Underage alcoholic drinking programs and laws
• Illegal drug offenses, programs and their federal and state drug laws
• Emergency response and evacuation procedures
• Policies regarding missing student notifications

It must also provide a clear policy and prevention statement and programs for all incoming students and new employees. It must address punishment and procedures to follow in cases of alleged domestic abuse, dating violence, sexual assault, or stalking including:

• A statement that the institution prohibits such crimes
• A definition of consent
• Types of proceedings
• Procedures for institutional disciplinary actions
• Decision-making processes
• How and to whom to file a complaint
• The standard of evidence
• The list of possible sanctions
• The range of protective measures and risk reduction
• Positive options for bystander intervention
• Proceedings by trained officials for impartiality
• Equal opportunities for the accuser and accused to have an advisor and others present
• Concurrent written notice to both sides the result of process, when reported, appealed, and final results
• Procedures victims should follow
• Importance of preserving evidence
• Involvement and ability to notify law enforcement and campus authorities
• Confidentiality protection of both and all necessary parties
• Counseling and other services available for victims
• Victim’s rights and institutional protective responsibilities
• Options to change academic, living, transportation, and working situations
• A Prohibition of retaliation

Encourage Pastoral and professional counselors to inform those they counsel on how to report crimes and that they may do so on a voluntary, confidential basis. 

Provide a statement advising the campus community where law enforcement establishment information for registered sex offenders may be acquired. Institutions must provide name, address, birth date, location of employment, school attended, of sex offenders at the request of any campus individual. Publish the three most recent calendar years for which there is available data that occurred within its Clery Geography.

The DOE annually sends a letter to institution presidents or COOs with the Campus Safety and Security Survey website to submit crime statistics.

Crime Log

Institutions with campus police or security must maintain a crime log of the last 60 days that is made open to the public during normal business hours. Make entries within two business days unless disclosing information is not permitted by law or jeopardizes the confidentiality of the victim. Include the nature, date, time, and general location of each crime within its Clery Geography that are reported to police or campus security. Make information beyond 60 days available within two business days of a request.

Keep crime logs for seven years, and three years following publication of the last annual security report. An institution may retain information if releasing information jeopardizes an ongoing criminal investigation, an individual’s safety results in the loss of evidence or causes a suspect flight or evasion of detection. The information must be released once the adverse effect is no longer likely to occur.

Report the following categories of crimes:
 

• Homicide
• Murder and Manslaughter
• Domestic Abuse
• Dating Violence
• Stalking
• Robbery and Burglary
• Aggravated Assault
• Theft of motorized vehicles
• Arson
• Liquor law violations
• Drug-related violations
• Unlawful weapons possession

Report forcible sexual offenses such as sexual battery, sexual assault, rape, and fondling as well as non-Forcible sexual offenses such as statutory rape, and incest. Report all hate crimes by category, such as by Race, gender, gender identity, national origin, religion, sexual orientation, ethnicity, and disability. Report hate crimes classified as larceny-theft, simple assault, intimidation, and destruction, damage and vandalism of property.

While not defined in statute, Campus Security Authorities must include campus police or security department personnel and designated individuals. Collect crime reports from campus security and state or local police with jurisdiction over Clery Act geography. The Clery Act doesn’t require these agencies to provide crime statistics. If a good-faith effort is made, the institution is not responsible for the agencies’ failing to supply them.

Fire Log

Institutions with on-campus residential facilities must also submit for each on-campus facility, an annual Fire Safety Report (AFSR) on October 1 including:

• Statistics on the causes and number of fires
• Fire-related injuries, deaths, and property damage
• Nature, date, time, and location of each fire
• A recording logged within two business days

Make the most recent 60-day fire log period open to public inspection. Beyond 60 days, make it available two business days from request.

Provide notice of availability of the ASR and the AFSR to all current and prospective students and employees including:

• The report’s availability
• That a paper copy will be provided upon request and how to attain one
• A brief content description
• The exact electronic address of the report

The ASR and AFSR may be published at the same time or separately. If separate, they must reference how to directly access the other.

Appropriate publications and mailings of the ASR and AFSR include:
 

• Regular mail to each person, campus mail, or e-mail
• Publications issued directly to individuals
• Posting on an approved internet or intranet website

Report Fire statistics to the Department of Education that include: 

• On campus housing facilities’ fire safety systems
• The number of previous calendar year fire drills
• Policies for transportable electrical appliances, smoking, and open flames in housing facilities
• Evacuation procedures for fires in student housing
• Training for fire safety
• Titles of persons to report fires
• Future fire safety improvement plans

Missing Persons Policies and Procedures

Institutions maintaining on-campus housing must establish a missing student notification policy and include it its ASR. Provide a list of titles of individuals to report a student missing for over 24 hours. Notify students of their right to identify a contact person who will be notified within 24 hours if the student is confirmed to be missing.

Immediately file missing student reports to campus security, institutional police or local law enforcement agency with jurisdiction in the area Advise students under 18 that their contact information is kept confidential. Notify a custodian, parent, or guardian and law enforcement within 24 hours if a student is missing.

Emergency Response, Evacuation Notifications, and Timely Warnings

Create an emergency response and evacuation procedure description in the ASR. Confirm serious emergencies or threatening situations, whom to notify, the content of the notification and the initiation of that notification. Provide immediate notification to the campus community if it poses an immediate threat to the health and safety of students or employees. Exceptions include when it may compromise efforts to assist victims or mitigate emergencies.

Compile a list of persons or organizations responsible for these activities and procedures for issuing emergency information to the larger community. Test and document emergency and evacuation procedures on an annual basis and whether it was announced or unannounced.

Report timely warnings for all Clery Act crimes in Clery Geography that are disclosed to Campus Security or local police establishments. Timely warnings apply to incidents that already occurred whereas the prior discussed emergency notifications anticipate a potential future incident. Timely warnings may protect students and employees from serious and continuing threats. Both must protect victim information. Publish institution policies regarding timely warnings in their Annual Campus Security Report.
 

Consequences for Non-Compliance with the Clery Act

The U.S. Department of Education evaluates an institution's compliance with the Clery Act and penalties can be severe.

Possible consequences include:

• The suspension of Title IV funding
• As of 2021, The Department of Education may issue a civil penalty up to $59,017 per infraction
• Negative media attention and damage to the institution’s reputation
• Non-compliance opens up the institution to a wide range of litigation matters

Most importantly, failure to comply could result in preventable assaults and loss of human life.

Conclusion

The Clery Act was established to protect the well-being and personal safety of college students and staff. Complying with this act allows institutions to continue to support the endeavors of those they educate and enrich the lives of those within and around their campus communities.

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