The Ed Dept’s new Clery Act guide raises new questions

Editor’s note: Melissa Carleton is a partner at Bricker & Eckler, in Ohio, focusing on higher education.

While it might appear otherwise based on its new, 554-page Title IX regulations, the current administration has attempted to reduce the regulatory burden on colleges and universities. One of the most recent examples of this is the rescission of the 265-page “Handbook for Campus Safety and Security Reporting.”

The latest version of the handbook was released in 2016. It assisted institutions in complying with the Clery Act, a federal law that, among other things, requires campuses to collect information about crime statistics and provide it to students, faculty, staff and the public.  

Like much of the guidance the U.S. Department of Education issued in recent years, the handbook had never been put through the notice and comment procedure that applies to federal regulations, and it did not carry the force of law. However, institutions that did not comply with the department’s interpretations of the Clery Act — as detailed in the handbook  were fined for each occurrence. A penalty that started at $25,000 has regularly increased, and today, noncompliance will cost $58,328 per occurrence, making the handbook a reference not to be ignored.  

The department is active in monitoring for noncompliance, and when it reviews an institution, it often finds multiple violations, resulting in fines in the millions of dollars.

In some ways, the handbook was truly helpful, providing, as it touted, a “step-by-step and readable” guide to compliance. It had examples. It had a compliance checklist that I have used regularly over the last four years. It was, in fact, quite readable in a way that interpretive guidance rarely is.     

The handbook was never perfect, however. In some situations, it went well beyond what many would characterize as a reasonable interpretation of the statutes and regulations.

As one example, would you expect an institution’s crime rate to include information about crime occurring in a hotel that the debate team stayed in two years in a row when competing in another state? Probably not, but if the institution didn’t seek out that information, it could be fined for failing to include these statistics in its “noncampus property” category. Other problems stemmed from the handbook taking different stances than the FBI on how to count crimes, making it more complicated for campus police to ensure Clery data was correct.  

On Oct. 9, 2020, at least partly in response to a 2015 Senate task force report criticizing the handbook, the handbook was formally withdrawn and replaced by a 13-page “Clery Act Appendix for FSA Handbook.” FSA stands for federal student aid, in recognition that Clery Act compliance is part of the deal for an institution to be eligible for Title IV funding. The Appendix more closely tracks the law and regulations, and it removes many of the examples that previously expanded colleges’ legal requirements.  

Colleges should be rejoicing, right?

Maybe, but maybe not. Before, the devil was in the details. Today, the devil is in the deference, or perhaps the lack thereof. Now that the department has removed many of the interpretive definitions of the statutory and regulatory language, will it truly defer to an institution’s reasonable interpretations as the school works in good faith to comply with the law? Or will the department continue to conduct program monitoring in accordance with its own interpretations, which are no longer shared in detail and may evolve differently under a new administration?  

Significant fines are on the line, so the answer is important.  

The new Clery Appendix notes several terms that are not fully defined by the law or regulations. For instance, the department will defer to an institution’s designation of who on campus qualifies as a “campus security authority,” who must report crimes for inclusion in statistics. 

The department also largely leaves it up to an institution to determine the appropriate geographic area for which crimes must be counted, specifically with regard to what area is “reasonably contiguous” to campus and what is considered to be “adjacent” public property. This leaves lots of room for interpretation, which may vary significantly by campus.

Before, the devil was in the details. Today, the devil is in the deference, or perhaps the lack thereof.

Earlier in my career, I regularly represented public institutions during audits into whether public funds were spent appropriately. The auditors abided by the principle that if the institution acted in accordance with a well-reasoned legal opinion as to what expenditures were appropriate, the expenditure would be deemed admissible. 

This principle encourages institutions to seek legal advice when the law is ambiguous and to act in good faith in accordance with that advice. Institutions that did not seek legal advice on an expenditure proceeded at their own risk, with public officials often held personally liable for misspent funds.

Given the heightened role deference will play in determining who is in compliance with the Clery Act and who pays, perhaps it is time for the department to consider adopting a similar rule in the Clery Act context — or at least to spend more time outlining when and how deference will be given with regard to how crime data is collected, counted and reported. 

For example, would it suffice to avoid a fine if the institution documents a particular decision and rationale in writing, and the decision is reasonable? An assumption of deference would encourage thoughtful compliance, reduce stress on college and university employees, and, hopefully, result in better information for our campus communities.  

With a law as important as the Clery Act, the department must continue to reduce its bureaucratic oversight in ways that allow institutions to renew their focus on improving the safety of students, faculty, staff and other community members.

The Appendix doesn’t quite get us there, but it’s a start.

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