Jessica Finkel and Jim Moore| Nov. 2012

U.S. Department of Education

2012 Fall Conference

Common Mistakes in Implementing Campus Security & Fire Safety

Requirements

Session 24

Agenda

• Background

• Review of Common Mistakes

• Resources

• Questions

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Background

• Higher Education Act of 1965, as amended, (HEA) is the cornerstone piece of legislation for higher education

• Jeanne Clery Disclosure of Campus Security Policy and Campus Crime Statistics Act (Section 485(f) of the HEA, 34 C.F.R. 668)

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Background

• Clery Act requires all schools to:

• Collect, classify, and count crime reports and crime statistics

• Issue Timely Warnings and Emergency Notifications

• Publish an annual security report with both statistics and policy statements

• Submit crime statistics to ED

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Background

• Institutions with campus police or security departments must:

• Maintain a daily crime log

• Institutions with on-campus student housing facilities must:

• Disclose missing student notification procedures that pertain to students residing in those facilities

• Comply with fire safety requirements

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Background

• Federal Student Aid (FSA) monitors & enforces the Clery Act & conducts campus crime program reviews

• Possible consequences of review findings:

• Fines - up to $35,000 per offense (recently increased)

• Limitation, suspension, or termination of the eligibility for student financial aid programs; denial of recertification or revocation of a provisional Program Participation Agreement (PPA)

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The Top 10 Clery Mistakes

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#1: Failure to Properly Report #1: Failure to Properly Report Crimes Based on GeographyCrimes Based on Geography

•Problem areas:• Non-campus buildings and property• Public property• Separate campuses

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Non-campus Buildings/Property

• Definition:

• “any building or property owned or controlled by a student organization that is officially recognized by the institution or

• Any building or property 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 of the institution”

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Non-campus Buildings/Property

• Schools often fail to report crimes for additional locations that meet this definition

• Review all locations to ensure you are reporting on all non-campus buildings/property

• Review and revise your policies and procedures for identifying non-campus properties

• NOTE: fraternity/sorority houses located within confines of the campus on land owned by the institution is considered on-campus, even if owned or controlled by the fraternity/sorority

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Public Property

• Definition: All public property, including thoroughfares, streets, sidewalks, and parking facilities, that is within the campus, or immediately adjacent to and accessible from the campus

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Public Property

• Many schools do not accurately identify public property that is immediately accessible and adjacent

• under-reporting: failure to identify all public property• over-reporting: mistakenly identify any property used by public

as public property

• Public Property Examples: Pages 18-24 – The Handbook for Campus Safety and Security Reporting (revised February 2011)• http://www2.ed.gov/admins/lead/safety/handbook.pdf

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Separate Campuses

• A location is a separate campus if:

• The institution owns or controls the site

• The location is not reasonably geographically contiguous with the main campus

• It has an organized program of study

• At least one person is acting on site in an administrative capacity

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Separate Campuses

• Institutions with more than one campus must comply with all of the Clery Act and fire and safety-related HEA requirements for each and every campus

• Schools often fail to report statistics for separate or branch campuses

• Each campus must have an Annual Security Report (ASR)

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#2: Improper Classification #2: Improper Classification and Under-Reporting of and Under-Reporting of

CrimesCrimes•Problem areas:

• Burglaries• Forcible Sex Offenses• Simple vs. Aggravated Assault• Hierarchy Rule

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Burglary

• Burglaries are frequently misclassified• UCR Definition: the unlawful entry of a structure to commit a felony

or a theft. Burglary is a crime against the habitation• A structure is defined as having four walls, a roof, and a door• Cannot be a burglary if there is no “structure” (as is often the case

on public property)• Example: theft from a motor vehicle is larceny, which is not a Clery

crime unless it is motivated by bias (i.e., is a hate crime)

• FBI guidance has changed: if unlawful access can’t be proven, the default is now larceny• Does not negate non-forcible burglary

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Forcible Sex Offenses

• Definition: Any sexual act directed against another person, forcibly and/or against that person’s will; or not forcibly or against the person’s will where the victim is incapable of giving consent

• From the National Incident-Based Reporting System (NIBRS) edition of the UCR Handbook

• 12/2011 change in FBI definition of forcible rape in UCR Summary Reporting Program does NOT affect Clery Act reporting for now

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Forcible Sex Offenses

• Forcible sex offenses are often misclassified

• Non-forcible sex offenses only include incest and statutory rape

• Date or acquaintance rape is a forcible sex offense

• Forcible fondling for sexual gratification* is a forcible sex offense

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Simple vs. Aggravated Assault

• Schools often misclassify assaults

• Simple Assault: An unlawful physical attack where the offender does not display a weapon and/or the victim does not suffer severe bodily injury. Unwanted fondling for sexual gratification is a forcible sex offense, not simple assault

• Aggravated Assault: An unlawful attack made for the purpose of inflicting severe bodily injury. Usually accompanied by the use of a weapon or means likely to produce death or great bodily harm if crime were successfully completed

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Simple vs. Aggravated Assault

• In classifying assaults, consider:

• The type of weapon used or the use of an object as a weapon• Could be common weapon, e.g., gun, knife, club• Could be other item used as a weapon, e.g., car, bat

• The seriousness of the injury

• The intent of the assailant to cause serious injury

• Classify assaults based on the standard UCR definitions

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Hierarchy Rule

• Count only the most serious offense when more than one offense was committed during a single incident

• Single incident means the same time and place

• Use the FBI’s UCR Hierarchy Rule• 2 exceptions

• Arson• Hate crimes

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Hierarchy Rule

• Always count arson regardless of the nature of any other offenses committed during the same incident

• With multiple crimes in single incident, report most serious offense and arson

• If persons are killed as a direct result of arson, classify as:• Murder/Non-negligent manslaughter and arson or• Negligent manslaughter and arson

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Hierarchy Rule

• Count all offenses committed in a multiple offense incident that are bias-motivated (i.e., hate crimes)

• Only classify the crimes that are bias-motivated as hate crimes in a multiple-offense incident

• “Group A” hate crimes are disclosed in both the general offenses category and in the hate crime category

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#3: Lack of or Inadequate #3: Lack of or Inadequate Policy StatementsPolicy Statements

•Problem areas:• Timely Warnings• Reporting Crimes• Confidential Reporting• Sexual Assault Policies• Crime Prevention Programs• Local Law Enforcement (LLE) Relationship

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Timely Warnings

• Must disclose policies for making timely warnings to members of the campus community regarding the occurrence of reportable offenses on their Clery geography

• Include the following elements:• Circumstances for which a warning will be issued• Individual or office responsible for issuing the warning• Manner/mode of communication in which warning will be

disseminated

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Timely Warning vs. Emergency Notification

• Required to have a policy for both timely warnings and emergency notifications

• Timing• Issue timely warning as soon as pertinent information is available -

no 24-48 hour standard• Initiate emergency notification procedures immediately upon the

confirmation that a dangerous situation or emergency exists or threatens

• Not required to send out a timely warning and an emergency notification for the same event• But must provide adequate follow-up information as appropriate

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Reporting Crimes

• Must list officials to whom students and employees should report potential crimes, including name, title, location, and contact information of each person

• Must include whether your institution has policies or procedures that allow victims or witnesses to report crimes on a voluntary, confidential basis for inclusion in the ASR

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Confidential Reporting

• Must describe procedures that encourage pastoral counselors and professional counselors – at their discretion – to inform their clients of any procedures to report crimes on a voluntary, confidential basis for inclusion in the crime statistics in the ASR

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Sexual Assault Policies

• The ASR must include policy and procedures statement regarding campus sexual assault programs to prevent sex offenses and procedures to follow when a sex offense occurs

• Schools reviewed often did not address all seven components required under 34 CFR 668.46(b)(11)• three components were most frequently missing

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Sexual Assault Policies

• Most frequently missing:

• Notification to students that the institution will change a victim’s academic and living situations after an alleged sex offense and available options Institution is obligated to comply with a request to the extent that it is

reasonable

• Sanctions that the institution may impose following a final determination by an institutional disciplinary proceeding of a sex offense

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Sexual Assault Policies

• Most frequently missing, cont’d

• Procedures for campus disciplinary action in cases of an alleged sex offense

• Must state that both accuser and accused will be informed of the outcome of any institutional disciplinary proceeding

• Must include a clear statement that both accuser and accused may have others present during an institutional disciplinary proceeding

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Crime Prevention Programs

• Must include a description of programs designed to inform students and employees about the prevention of crimes

• Must include all programs designed to meet this goal

• Describe the programs, do not just list them

• If you do not have any programs of this nature, state this fact

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Local Law Enforcement Relationship

• Must describe the working relationship of campus security personnel with state and local law enforcement agencies

• Specify whether you have a Memorandum of Understanding (MOU) or other written agreement

• You do not have to include a copy of your MOU in the policy statement; just disclose whether you have one

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#4: Failure to Publish and #4: Failure to Publish and Distribute the ASR as a Distribute the ASR as a

Comprehensive DocumentComprehensive Document

•Problem areas:• Information not centralized in ASR• Notice of ASR Availability

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ASR as Comprehensive Document

• ASR must include, in a single document:• Crime statistics• Current campus safety and security policies and procedures - i.e.,

all of the required policy statements required in 34 CFR 668.46(b)

• Some schools did not publish the statistics and policies together in one place

• Annual Fire Safety Report• May be published separately from ASR• Specify how to access ASR if published separately

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Notification of ASR Availability

• Must provide ASR to all current students and employees by October 1 each year either-• Directly (by mailing or hand delivery) or• Posting on an accessible internet or intranet site

• If posted online, must distribute a notice by October 1 with statement of report’s availability, exact URL, a description of contents, and statement that paper copy is available upon request

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Notification of ASR Availability

• Must provide a notice to prospective students/employees that includes statement of ASR availability, a description of contents, and the opportunity to request a copy

• Must provide a copy of the ASR upon request

• If posted on an internet site, notice must also include exact URL where ASR is posted

• NOTE: with prospective students/employees, information may not be posted on an intranet site

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#5 – Inadequate Systems for #5 – Inadequate Systems for Collecting Statistics from Collecting Statistics from

Required SourcesRequired Sources

•Problem areas:• Requesting statistics from LLE• Identifying campus security authorities (CSAs)• Collecting crime statistics

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Requesting Statistics from LLE

• Must make a reasonable, good faith effort to obtain statistics on crimes reported to local police agencies that occurred on Clery geography

• Retain proof of request

• Institution not held responsible if local or State police agency does not supply the statistics

• Must make effort to collect statistics from any law enforcement agency that may have jurisdiction over Clery geographic locations (pay attention to locations for which you must report)

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Requesting Statistics from LLE

• Suggestions:

• Make request with enough lead time for a response for inclusion in ASR by October 1

• Provide LLE with clear information about what information is needed

• Report only for the crimes that occurred on Clery geography – NOT crimes in entire city or police jurisdiction

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Identifying CSAs

• Campus Security Authorities (CSAs) must report allegations for Clery Act crimes that he or she concludes were made in good faith

• Reports are made to the official/office designated by the school to collect crime report information

• CSAs are not responsible for determining authoritatively whether a crime took place or for apprehending the alleged perpetrator

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Identifying CSAs

• “CSA” is a Clery-specific term that includes:

• Campus police or campus security department

• Individuals with responsibility for campus security but are not part of the campus police/security department

• Individuals/organizations specified in a campus security policy as an entity to whom criminal offenses should be reported

• Official with significant responsibility for student and campus activities

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Identifying CSAs - Exceptions

• Pastoral and professional counselors are not CSAs under Clery not always required to report crimes they may have learned about

• Similar to doctor-patient confidentiality

• Only applies when individual is acting in their role as a counselor

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Collecting Crime Statistics

• Schools cited for weak systems for gathering statistics in a way that would produce an accurate and complete ASR

• Critical to train employees to produce adequate incident reports to allow determination of whether a Clery-reportable crime occurred

• Must develop procedures for collecting reportable incidents from offices/individuals across campus for inclusion in statistics

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#6 – Incorrect Reporting of #6 – Incorrect Reporting of Referrals for Disciplinary Referrals for Disciplinary Action for Liquor Law and Action for Liquor Law and

Drug ViolationsDrug Violations

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Liquor Law & Drug Violations

• Must report the number of arrests and the number of persons referred for disciplinary action for:

• Weapons: carrying, possessing, etc.

• Drug abuse violations

• Liquor law violations

• Reported by Clery Geography

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Liquor Law & Drug Violations

• Schools misunderstand “referrals for disciplinary action”

• Definition: the referral of any person to any official who initiates a disciplinary action of which a record is kept and which may result in the imposition of a sanction

• “Initiates a disciplinary action” may include reviewing the referral• Does not have to result in a sanction

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Liquor Law & Drug Violations

• Does not include violations of institutional policies that resulted in referral if there was no violation of the law

• Review state laws and local ordinances that apply to your institution• If an individual is both arrested and referred, only report the arrest

statistic

• Do not combine stats for arrests and referrals

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#7 – Inaccurate Reporting of #7 – Inaccurate Reporting of Crime Statistics to the Office Crime Statistics to the Office of Postsecondary Education of Postsecondary Education

(OPE)(OPE)

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Inaccurate Reporting of Crime Statistics to OPE

• Crime statistics must be reported and disclosed• Reported to OPE via web-based survey• Disclosed to students and employees in ASR

• Some reviews found discrepancies between the statistics that were reported vs. disclosed• Review procedures to ensure that correct information is reported

and disclosed• Develop a means of compiling and recording data so that a proper

audit trail is established

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#8 – Deficient Crime Log#8 – Deficient Crime Log

•Problem areas:• Accuracy/Completeness• Availability to Public• Maintenance

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Crime Log Accuracy/Completeness

• Log records, by the date a crime was reported, any crime that occurred on Clery geography OR within the patrol jurisdiction of the campus police or campus security department

• Must include nature, date, time, and general location of each crime

• Must include the disposition of the complaint (if known)

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Crime Log Availability

• Must be accessible on site (electronic or written)

• Must be available upon request for public inspection during business hours• Most recent 60-day period should be available immediately• Records older than 60 days must be made available within two

business days of a request

• Must be available without payment or written request

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Crime Log Maintenance

• 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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#9 – Inaccurate Reporting of #9 – Inaccurate Reporting of Hate CrimesHate Crimes

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Inaccurate Hate Crime Reporting

• Must report, by category of bias, any hate crime reported to local police agencies or to CSA

• A hate crime means a criminal offense committed against a person or property that manifests evidence that the offense was motivated, in whole or in part, by the offender’s bias

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Inaccurate Hate Crime Reporting

• Hate crime categories:• Clery offenses • Larceny-theft, simple assault, intimidation,

destruction/damage/vandalism of property• Any other crime involving bodily injury

• Must address hate crimes in ASR (even if only by a statement that no hate crimes were reported)

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#10 – Failure to Develop, #10 – Failure to Develop, Implement, and Adhere to Implement, and Adhere to

Established PolicyEstablished Policy

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Policy Violations

• Many Clery reports cite instances in which IHE did not follow the policies/procedures that they had established• Examples from recent findings

Timely warning policies Rights of accuser and accused Emergency response and evacuation procedures

• Bottom line – don’t just include statements in the ASR…IMPLEMENT and FOLLOW the policies!

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And…One To Grow On!

• Failure to comply with the Drug-Free Schools and Communities Act (DFSCA)

• The DFSCA and Part 86 of the Department’s General Administrative Regulations require schools to certify that it has developed and implemented a drug and alcohol abuse education and prevention program (DAAPP)

• 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

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DFSCA and Part 86

On an annual basis, schools must distribute the DAAPP to all current students and all current employees: •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 and•a clear statement that the school will impose sanctions on students and employees who violate drug and alcohol laws, ordinances, and/or institutional policies

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DFSCA and Part 86

• Biennial Review

• Each school must conduct a biennial review to determine the effectiveness of its DAAPP and to ensure consistent enforcement of applicable laws, ordinances, and institutional policies against violators

• The biennial review report and supporting documents must be maintained by the school and made available to the Department upon request

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Resources

• The Handbook for Campus Safety and Security Reporting (revised February 2011)• http://www2.ed.gov/admins/lead/safety/handbook.pdf

• Handbook Help Desk • Clarifications – see 3/26/12 communication

https://surveys.ope.ed.gov/security/HelpDeskEmailView.aspx

• 1-800-435-5985 or HandbookQuestions@ed.gov

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Resources

• ED Campus Safety Website (includes a training video)• http://www2.ed.gov/admins/lead/safety/campus.html

• Federal Student Aid Self-Assessment of Clery Compliance• http://ifap.ed.gov/qahome/qaassessments/

consumerinformation.html

• Federal Student Aid Data Center – Clery Act Reports (see compliance reviews)• http://federalstudentaid.ed.gov/datacenter/cleryact.html

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QUESTIONS?

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Contact Information

We appreciate your comments and feedback!

• Jessica Finkel – Office of Postsecondary Education•E-mail: Jessica.Finkel@ed.gov•Phone: 202-502-7647

• Jim Moore – Federal Student Aid•E-mail: James.Moore@ed.gov•Phone: 202-377-4089 (D.C.) or 215-656-6495 (Phila.)

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