Tips for gathering Clery statistics for this year’s report

by Thompson Coburn LLP
Contact

Managing compliance with Title IX and the Jean Clery Act has been on many an administrator’s mind of late, and rightly so. In recent months, the U.S. Department of Education’s Office of Civil Rights (OCR) has through administrative action and announcement issued volumes of new guidance that to many in the regulated community appear to incorporate extensive new requirements.

Meanwhile, subsequent to last year’s signing of the Violence Against Women Reauthorization Act of 2013 (VAWA), the Department’s Clery Act Compliance Division (Clery Division) has been leading a negotiated rulemaking for the purpose of promulgating a host of new regulations designed to carry out VAWA, and to enhance and clarify the existing law. The proposed regulations were released in mid-June, with the final version anticipated in September.

Accompanying this onslaught of guidance and regulation has been increased attention from regulators, policymakers, and even the mainstream media. The Department has significantly increased its review of Clery Act compliance during program reviews and other onsite audits, and demonstrated a ready willingness to levy significant fines. The activity of the Office of Civil Rights, in turn, has been so significant as to push campus management of sexual violence to the top of the news cycle, and even onto the cover of Time Magazine. Any postsecondary administrator feeling a bit overwhelmed or anxious is in good company.

Adding to existing frustration, and in some cases confusion, is the fact that these two laws are overseen and enforced by separate divisions of the Department, despite the fact that the concentric circles representing each body of law now overlap more than a little. The Department, rather than offer integrated guidance, has elected to approach each law separately, noting in recent guidance documents that while the two laws “overlap in some areas relating to requirements for an institution’s response to reported incidents of sexual violence, the two statutes and their implementing regulations and interpretations are separate and distinct.”

From a regulatory standpoint, this stance is defensible. An agency department tasked with enforcing a particular law is acting appropriately when it respects the limitations of its authority and expertise. Nonetheless, for a postsecondary administrator tasked with absorbing and integrating these laws into a unified set of campus policies and procedures — amidst intense political and media scrutiny, no less — it is the kind of statement that leads to nervous tics and early retirement.

Because the breadth and detail of the requirements flowing from Title IX and the Clery Act is so significant, we cannot offer a comprehensive analysis in the context of this site. At least not all at once. But we believe we can offer some digestible bits of guidance and advice that will assist institutions to bring the new requirements into focus, put them into order, and ultimately steer their campus into compliance. Accordingly, over the coming weeks and months, REGucation will examine certain of the new requirements flowing from these two laws, with an aim toward offering practical advice for compliance and management.

Tips for gathering Clery statistics
With the remainder of this post, we thought we would focus on the process for gathering Clery statistics for this year’s Annual Security Report, and in particular, to the request letter your institution sends to law enforcement agencies, which should be sent out soon, if it has not gone already. In March 2013, VAWA amended the Clery Act to require institutions, among other things, to gather and report statistics for incidents of domestic violence, dating violence, and stalking. The act required that institutions include this new statistical data in the Report that they issue on or before October 1, 2014.

In mid-July, the U.S. Department of Education issued a Dear Colleague letter in which it indicated that institutions will not be required to report the new statistics to the Department during this year’s web-based data collection. Institutions will, however, be expected to make a good-faith effort to gather and publish the new statistics in this year’s Annual Security Report, and will be required to report the new statistics for calendar years 2013 and 2014 in next year’s Report.

The starting point for making sure you get the right data is the request letter your institution sends to law enforcement agencies or any other external entity from which you gather information regarding reported crimes. We recommend that you use as your basic template the sample letter included in Appendix B to the Department’s “Handbook for Campus Safety and Security Reporting.” But take note, the handbook was published in 2011, before VAWA become law, so you should consider the following possible changes:

  • - First, update the letter to ensure that you request statistics for incidents of domestic violence, dating violence, and stalking for calendar year 2013. You do not need to add “sexual assault” to your request letter. While the term “sexual assault” is introduced in VAWA, it does not come into play in the 2013 data collection. The “sex offenses” data you already gather is sufficient. Because we love graphics around here (worth a thousand words after all), we’ve put together the following chart, which may help to keep things straight: "Clery Reportable Crimes Chart."
  • - Second, revise and expand the letter to reflect the new categories of bias for hate crimes. Specifically, VAWA added “national origin” and “gender identity” to the categories previously listed in the law. Thus, the new, complete lineup includes the following eight categories of bias: race, gender, religion, national origin, sexual orientation, gender identity, ethnicity, or disability.
  • - Third, specify the applicable definitions of domestic violence, dating violence, and stalking. Historically, the crime statistics gathered in connection with the Clery Act all have been compiled in accordance with the definitions used in the Federal Bureau of Investigation’s uniform crime reporting system. However, the definitions of domestic violence, dating violence, and stalking are drawn from section 40002(a) of VAWA. Conveniently, these definitions are set out in the Dear Colleague letter referenced above.

Finally, make sure that you keep a copy of any letter you send to local law enforcement, or any other party, requesting statistics, and be sure to pair the request with the reply in your records. As anyone who has administered this process knows, the data received back from law enforcement can vary greatly in form and quality. We have seen responses as brief as an email simply stating “nothing to report.” Should you ever be subject to a Department of Education Program Review, or any other form of Clery audit, you will greatly enhance your ability to demonstrate compliance if you can show that you requested the correct data. Indeed, it may be the only way you can provide meaningful context for the response you received in reply. 

 

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

© Thompson Coburn LLP | Attorney Advertising

Written by:

Thompson Coburn LLP
Contact
more
less

Thompson Coburn LLP on:

Readers' Choice 2017
Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:
Sign up using*

Already signed up? Log in here

*By using the service, you signify your acceptance of JD Supra's Privacy Policy.
Custom Email Digest
Privacy Policy (Updated: October 8, 2015):
hide

JD Supra provides users with access to its legal industry publishing services (the "Service") through its website (the "Website") as well as through other sources. Our policies with regard to data collection and use of personal information of users of the Service, regardless of the manner in which users access the Service, and visitors to the Website are set forth in this statement ("Policy"). By using the Service, you signify your acceptance of this Policy.

Information Collection and Use by JD Supra

JD Supra collects users' names, companies, titles, e-mail address and industry. JD Supra also tracks the pages that users visit, logs IP addresses and aggregates non-personally identifiable user data and browser type. This data is gathered using cookies and other technologies.

The information and data collected is used to authenticate users and to send notifications relating to the Service, including email alerts to which users have subscribed; to manage the Service and Website, to improve the Service and to customize the user's experience. This information is also provided to the authors of the content to give them insight into their readership and help them to improve their content, so that it is most useful for our users.

JD Supra does not sell, rent or otherwise provide your details to third parties, other than to the authors of the content on JD Supra.

If you prefer not to enable cookies, you may change your browser settings to disable cookies; however, please note that rejecting cookies while visiting the Website may result in certain parts of the Website not operating correctly or as efficiently as if cookies were allowed.

Email Choice/Opt-out

Users who opt in to receive emails may choose to no longer receive e-mail updates and newsletters by selecting the "opt-out of future email" option in the email they receive from JD Supra or in their JD Supra account management screen.

Security

JD Supra takes reasonable precautions to insure that user information is kept private. We restrict access to user information to those individuals who reasonably need access to perform their job functions, such as our third party email service, customer service personnel and technical staff. However, please note that no method of transmitting or storing data is completely secure and we cannot guarantee the security of user information. Unauthorized entry or use, hardware or software failure, and other factors may compromise the security of user information at any time.

If you have reason to believe that your interaction with us is no longer secure, you must immediately notify us of the problem by contacting us at info@jdsupra.com. In the unlikely event that we believe that the security of your user information in our possession or control may have been compromised, we may seek to notify you of that development and, if so, will endeavor to do so as promptly as practicable under the circumstances.

Sharing and Disclosure of Information JD Supra Collects

Except as otherwise described in this privacy statement, JD Supra will not disclose personal information to any third party unless we believe that disclosure is necessary to: (1) comply with applicable laws; (2) respond to governmental inquiries or requests; (3) comply with valid legal process; (4) protect the rights, privacy, safety or property of JD Supra, users of the Service, Website visitors or the public; (5) permit us to pursue available remedies or limit the damages that we may sustain; and (6) enforce our Terms & Conditions of Use.

In the event there is a change in the corporate structure of JD Supra such as, but not limited to, merger, consolidation, sale, liquidation or transfer of substantial assets, JD Supra may, in its sole discretion, transfer, sell or assign information collected on and through the Service to one or more affiliated or unaffiliated third parties.

Links to Other Websites

This Website and the Service may contain links to other websites. The operator of such other websites may collect information about you, including through cookies or other technologies. If you are using the Service through the Website and link to another site, you will leave the Website and this Policy will not apply to your use of and activity on those other sites. We encourage you to read the legal notices posted on those sites, including their privacy policies. We shall have no responsibility or liability for your visitation to, and the data collection and use practices of, such other sites. This Policy applies solely to the information collected in connection with your use of this Website and does not apply to any practices conducted offline or in connection with any other websites.

Changes in Our Privacy Policy

We reserve the right to change this Policy at any time. Please refer to the date at the top of this page to determine when this Policy was last revised. Any changes to our privacy policy will become effective upon posting of the revised policy on the Website. By continuing to use the Service or Website following such changes, you will be deemed to have agreed to such changes. If you do not agree with the terms of this Policy, as it may be amended from time to time, in whole or part, please do not continue using the Service or the Website.

Contacting JD Supra

If you have any questions about this privacy statement, the practices of this site, your dealings with this Web site, or if you would like to change any of the information you have provided to us, please contact us at: info@jdsupra.com.

- hide
*With LinkedIn, you don't need to create a separate login to manage your free JD Supra account, and we can make suggestions based on your needs and interests. We will not post anything on LinkedIn in your name. Or, sign up using your email address.