Transcript The Clery Act, VAWA, and More Jim Moore and Keith Ninemire | July 27.

The Clery Act, VAWA, and More
Jim Moore and Keith Ninemire | July 27. 2015
U.S. Department of Education
Salish Kootenai College Student Affairs Financial Aid Training Conference 2015
Disclaimer
“This presentation provides general information about the Clery
Act. It does not represent a complete recitation of the applicable
law or ED/FSA policies in this area and is for discussion purposes
only. This presentation must not be used for any other purpose.
Actual compliance determinations must be made after a careful
analysis of specific facts on a case-by-case basis. Comments
made during this presentation are for instructional and illustrative
purposes only and are not intended for attribution or publication.”
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Agenda
Compliance with the Clery Act: Campus Crime, Fire Safety, and
VAWA: Practical Advice for Higher Education Professionals
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Thank You!!!
Background/History of the Clery Act
Monitoring and Enforcement
Clery Act Basics
Violence Against Women Reauthorization Act of 2013 (VAWA)
“ (At least) 10 Things That You Need To Know About VAWA”
A (Quick) Note on the “Intersection of Clery/VAWA, Title IX, and FERPA”
FSA/OCR Collaboration
Best Practices
Drug-Free Schools and Communities Act
Questions
Background/History of the Clery Act
Campus safety and crime prevention requirements in the HEA
starts with the Crime Awareness and Campus Security Act of 1990
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1992 - Expanded sexual assault policy requirements
1998 - Expanded reporting requirements and renamed the law in
memory of Jeanne Clery (Crime Log; Expanded geographical scope)
2000 - Victims of Trafficking Act (Sex offender registry)
2008 – HEOA (Emergency notification and response; Fire safety)
2013 - Section 304 of VAWA amends the Clery Act
What’s on the horizon…
College Accountability and Safety Act (CASA)?
Hold Accountable and Lend Transparency Act (HALT)?
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Monitoring and Enforcement
Federal Student Aid monitors & enforces the Clery Act:
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Program Reviews - Three Types
Complaint Assessments
Media Assessments
Possible consequences of review findings:
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Fines - up to $35,000 per offense (CASA Proposal)
Limitation, suspension, or termination of the eligibility for student
financial aid programs; denial of recertification or revocation of a
provisional Program Participation Agreement
Special Note:
The Secretary “shall impose” a civil penalty for any Clery Act
violation that rises to the level of a “significant misrepresentation.”
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Do It For Jeanne…Your Students…Your Friends…Your School
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Clery Basics – Getting It Right!
Theme #1: Moving From Compliance To Excellence!
Theme #2: Focus on campus safety & crime prevention
Theme #3: Protect the “Brand” and Risk Management
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Student Activism
Media Attention
Better Awareness
Shifting Incentives
Financial/Existential Pressures
Clery Basics
The Clery Act campus safety and crime prevention
provisions require all* schools to:
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Classify crime reports and compile and disclose crime statistics
Publish and actively distribute an annual security report (ASR) that
contains all required statistical and policy disclosures (50+)
Submit crime statistics to ED
Issue timely warnings and emergency notifications
Police/Security: Daily Crime Log
Housing: Missing Persons Notification & Fire Safety
Clery Basics - ASR
Publish and distribute an ASR
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Must distribute an accurate and complete report to all enrolled
students and current employees
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Directly by mail, hand delivery, or email or
• By posting on an Internet or intranet site that is reasonably accessible to
current students and employees*
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*If you post the annual security report online, you must
distribute a notice by October 1st with statement of report’s
availability, exact URL, a description of contents, and
statement that paper copy is available upon request
Clery Basics - ASR
Publish and distribute an ASR
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Must actively notify prospective students and employees
about the availability of the ASR. The notice must include a
description of the report’s contents and explain how to obtain
a paper copy
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Must provide a copy of the ASR upon request
• If posted on an internet site, notice must also include exact URL where ASR
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For prospective students and employees, information may not
be posted on an intranet site
Clery Basics - Reportable Offenses
Criminal Offenses
Arrests/Disciplinary
Referrals
Hate Crimes
VAWA
Murder/Non-Negligent
Manslaughter
Rape
Fondling
Drug Law Violations
Simple Assault
Dating Violence
Liquor Law Violations
Weapons Possession
Violations
Intimidation
Larceny/Theft
Domestic Violence
Stalking (including
Cyber-Stalking)
Statutory Rape
Incest
Robbery
Aggravated Assault
Burglary
Motor Vehicle Theft
Arson
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Vandalism/Destruction
of Property
Clery Basics – Hate Crimes
Classify crime reports and disclose crime statistics
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Hate crimes are motivated by the offender’s category of bias
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Race
Gender
Religion
Sexual orientation
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Ethnicity/national origin
Disability
Perceived gender**
Gender identity**
**Added to the Clery Act by the Matthew Shephard Act, 2009)
Arrests and referrals for disciplinary action are based on
violations of weapons, drug, and liquor laws, not of institution
policies
Clery Basics - Crime Statistics
Classify crime reports and disclose crime statistics
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Schools disclose reported offenses, regardless of whether or
not the alleged perpetrator is found guilty
“Reported” = brought to the attention of a campus security authority or
local law enforcement personnel. A report cannot be “unreported” but
can be “unfounded” by law enforcement if certain conditions are met.
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Count both attempted and completed crimes
Make a reasonable, good faith effort to obtain crime statistics
from local law enforcement agencies
Hierarchy and exceptions (Criminal Homicide & Arson)
Crimes may be reported anonymously per institutional policy –
never include PII in the ASR and/or crime statistics
Clery Basics - “Clery Geography”
Clery Geography Defined:
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Campus I: any building or property owned or controlled by
an institution within the same reasonably contiguous
geographic area and is used by the institution in direct
support of, or in a manner related to, its educational
purposes, incl. Residence halls
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Campus II: any building or property that is within or
reasonably contiguous to the area identified above that is
owned by the institution but is controlled by another person,
is frequently used by students, and supports institutional
purposes (such as food or other retail vendor)
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Clery Basics - “Clery Geography”
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Non-campus building or property: (1) Any building or property
owned or controlled by a student organization that is officially
recognized by the institution; or (2) any building or property
(other than a separate campus) owned or controlled by an
institution that is used in direct support of, or in relation to, the
institution’s educational purposes, is frequently used by
students, and is not within the same reasonably contiguous
geographic area
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Public Property: All public property including thoroughfares,
streets, sidewalks, and parking facilities, that is within the
campus, or immediately adjacent to or accessible from the
campus
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Clery Basics - Campus Security Authority
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Members of a campus law enforcement or public safety entity
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Any individual who has responsibility for campus safety but is
not part of a campus law enforcement or public safety
department or presence (hall monitors; parking attendants)
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Any official of an institution who has significant responsibility
for student and campus activities, but does not have significant
counseling responsibilities
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Actual professional & pastoral counselors are exempt
Note: Special considerations for institutions specializing in
counseling or affiliated with churches/religious orders
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Clery Basics – ED Annual Survey
Submit crime statistics to ED
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Institutions report campus crime statistics for the 3 mostrecent calendar years
Must match the statistical disclosures that were published in
the annual security report
Deadline for completing the web-based data collection is
specified by the Secretary each year – typically mid-October
Collected data are posted on OPE’s Data Analysis Cutting Tool
(linked to College Navigator) for public use
Warning: This is NOT an ASR!
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Clery Basics - Safety Alerts
Issue Timely Warnings and Emergency Notifications
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Institutions must issue campus safety alerts to provide
students and employees with timely information about
ongoing threats due to crime or other dangerous conditions
Two kinds of alerts:
• Timely warnings are issued for Clery-reportable crimes that
may pose a serious ongoing threat (Clery Geography)
• Emergency notifications are issued upon the confirmation of
a significant emergency or dangerous situation that may
pose an immediate threat to health or safety (Campus Only)
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Clery Basics - Special Considerations
Additional requirements:
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Institutions with a campus police or security presence** must
additionally maintain a daily crime log
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Institutions with on-campus student housing facilities must
additionally:
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Develop and implement missing student notification procedures that pertain
to students residing in those facilities and include them in the ASR
• Comply with fire safety requirements
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Clery Basics – Crime Log
Daily Crime Log
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Log is a daily record of criminal and alleged criminal incidents
reported to the campus police or security personnel
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All crimes on Clery geography or within patrol jurisdiction of the campus
police/security department
• Not just Clery Act crimes
• Records nature, date the crime was reported, time, date, general location,
and disposition (if known) of each crime
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Clery Basics – Crime Log
Daily Crime Log
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Log must be available
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Must be accessible on-site (written or electronic)
• Available upon request for public inspection during business hours (most
recent 60 days available immediately; older records available within 2
business days)
• Must be available without payment or written request
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Log must be maintained
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Must make additions or updates to an entry within two business days
• Update disposition up to 60 days from when crime was entered in the log
• Schools must archive log for seven years (record-retention requirement)
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Clery Basics - Missing Students
Missing Student Notification
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Include a statement in the ASR that addresses missing student
notification procedures that will apply when a it is determined
that a student that resides in on-campus student housing has
been missing for 24 hours
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Students must be given the opportunity to register a
confidential contact with the institution
– Confidential information for this purpose must be kept separate from general
emergency contact information
– Only authorized officials may have access to the information
– Such information may only be disclosed to law enforcement in furtherance of a
missing person investigation
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Clery Basics - Fire Safety
Fire Safety Policies and Statistics
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3 primary compliance areas:
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Annual fire safety report
• Submit fire statistics to ED
• Fire log
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Clery Basics - Fire Safety
Publish an Annual Fire Safety Report (AFSR)
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Must publish and actively distribute AFSR by October 1st
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Report must include:
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Fire statistics
• Current fire safety policies and procedures
• must be a single, comprehensive report
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Annual fire safety report and annual security report
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May be published separately or together
• If published separately, specify how to access the other report in each one
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Clery Basics - Fire Safety
Submit fire statistics to ED
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Must submit fire statistics for three most-recent calendar years
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Collected via the same web-based collection tool as the campus crime
statistics
• Includes statistics for each on-campus student housing facility – if
questions arise about ownership or whether a housing unit is on-campus,
please consult with the Clery Team - [email protected] or the Help Desk
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Statistics include:
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Number and cause of each fire
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Number of persons with injuries related to a fire that resulted in treatment at
a medical facility
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Number of deaths related to a fire
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Value of property damage
Clery Basics – Fire Safety
Fire Log
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Fire log is a record of any fire that occurs in an on-campus
student housing facility
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Records nature, date the crime was reported, time, date, nature, and general
location of each fire
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Annual report to the campus community on fires recorded in
the log
Clery Basics – Fire Safety
Fire log
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Log must be available
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Must be accessible on-site (written or electronic)
• Available upon request for public inspection during business hours (most
recent 60 days available immediately; older records available within 2
business days)
• Must be available without payment or written request
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Log must be maintained
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Must make additions or updates to an entry within two business days
• Update disposition up to 60 days from when crime was entered in the log
• Schools must archive log for seven years
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The fire log may be combined with the daily crime log
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Label it well so users know it is both a crime and fire log
• Ensure that it contains the required elements for both logs
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Violence Against Women Reauthorization Act of 2013
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Enacted March 7th, 2013; Final Rule issued on October 20, 2014
http://ifap.ed.gov/eannouncements/102014ViolenceAgainstWomenAct.html
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Requires expanded reporting for incidents of sexual assault,
dating violence, domestic violence, and stalking (including
cyber-stalking) and clarifies the limitations on “unfounding” a
reported offense
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Requires that the ASR include additional information about
policies, procedures, and training programs aimed at sexual
assault prevention and response
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Expands accommodations and protective measures
requirements
Violence Against Women Reauthorization Act of 2013
New Programmatic and Training Requirements include:
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Awareness Campaigns – Ongoing Requirement
Primary Prevention
Risk Reduction
Bystander Intervention
Per Master Calendar, final regulations went into effect July 1, 2015
Institutions were already obligated to make a documented, good
faith effort to comply with the statutory requirements – 2014 ASR
Intersection of Clery Act & Title IX: Strict compliance with Clery
Act/VAWA will NEVER cause a direct violation of FERPA and/or
Title IX: https://www.notalone.gov/assets/ferpa-clerychart.pdf
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Program Reviews – What to Expect
Written Notification - Fieldwork - PRR – Response - FPRD
“How do you know what you think you know?”
Document! Document!! Document!!!
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Document requests (not a negotiation)
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Police/Public safety incident reports + arrest records
Student and employee conduct records…advocacy, athletics, Greeks, housing
What about FERPA?
• Interviews
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Institutional officials - Students - Law enforcement - social service agencies
Emphasis on full disclosure and timely production
• Role of advisors, consultants, and attorneys
• Opportunity to demonstrate administrative capability
• Separate from other reviews or investigations (ED OCR; Justice)
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FSA/Clery-OCR Collaboration
Principles for Cooperation
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Increased collaboration during the last year!
Gives structure to existing partnerships
Complaint intake, referral, and resolution
Enforcement cases
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Better communication
Joint interviews
Information sharing
Better experience and fewer obstacles for students/complainants
Improved efficiency/stewardship of limited resources
Creating learning opportunities for schools and ED staff
Integrated technical assistance
Build & leverage mutual understanding of unique roles and mission
Protection of confidentiality and privacy rights
Best Practices
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Appoint and empower a Clery Act/Part 86 Compliance Officer
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Get Value from the People and Firms that You Hire!
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Internal staff/Outside professionals/Software vendors/Associations
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Develop an understanding of “Clery Geography”
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Identify and train “Campus Security Authorities”
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Specifically inform students and employees about how to report
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Develop a VAWA Implementation/Integration Plan
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Drug-Free Schools & Communities Act
Implemented by 34 CFR Part 86 (Part 86)
• Requires institutions to certify that they have
developed and implemented a drug and alcohol
abuse education and prevention program (DAAPP) –
completed through the PPA**
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The program must be designed to prevent the unlawful
possession, use, and distribution of drugs and alcohol on
campus and at recognized events and activities
As part of the program, institutions must distribute certain
information to students and employees annually
Institutions must do a biennial review of the program
Drug-Free Schools & Communities Act
Annual disclosure**
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Must share information with current students and employees
34 CFR § 86.100 outlines the information that must be
included:
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Standards of conduct prohibiting the possession, use, and distribution of
drugs and alcohol
Possible sanctions for violations of Federal, state, and local drug and
alcohol laws as well as sanctions for violation of institutional policies
Health risks associated with the use of drugs and alcohol
Information on counseling, rehabilitation, and treatment programs
A clear statement that the school will impose sanctions on students and
employees who violate drug and alcohol laws, ordinances, and/or
institutional policies
Drug-Free Schools & Communities Act
Biennial Review**
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Objectives are:
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To determine the effectiveness of your drug and alcohol abuse prevention
program
• To ensure consistent enforcement of applicable laws, ordinances, and
institutional policies against violators
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The biennial review report and supporting documents must be
maintained by the school and made available to the
Department upon request
Special Note* The DFSCA requirements are
stackable/cumulative i.e. if an institution fails to develop and
implement a substantive DAAPP, the institution CANNOT
comply with the other requirements
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QUESTIONS?
Jim Moore
Clery Act Compliance Team
[email protected]
Keith Ninemire
Clery Act Compliance Team
[email protected]
General Inquiry Mailbox
[email protected]
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