Unfortunately, the effectiveness of the law was hampered both by genuine confusion about what the statute required and the continued efforts of some school officials to keep campus crime information secret.2 The U.S. Department of Education faced mounting criticism for lax enforcement of the law,3 and Congress passed a resolution calling for the Department to take more aggressive steps to ensure that schools were accurately reporting campus crime.4

By 1998, these concerns had multiplied to the point that Congress amended the law to expand and strengthen its provisions and enforcement.

The amended law, officially renamed the Jeanne Clery Disclosure of Campus Security Policy and Campus Crime Statistics Act,5 and commonly known as the Clery Act, took effect on Oct. 1, 1998. It requires schools to provide three different types of records: (1) an annual statistical report, (2) a daily campus crime log and (3) "timely reports" regarding crimes that present an ongoing threat to the campus community.

(Separate legislation -- passed at the same time as the Clery Act -- also now allows schools to release information about the outcomes of certain campus disciplinary, or campus court, proceedings.)6

On November 1, 1999, the Department of Education issued final regulations for enforcement of the Clery Act.7

For private school students, these federal laws may provide the only information about campus crime to which they are legally entitled. Public school students can use the new laws to supplement information that they should already be receiving under their state's open-records and open-meetings laws.

Although the revised law still falls short of providing complete information about campus crime, it does, for the most part, represent a significant improvement over the earlier version. To help student journalists use the law, we have put together a list of some of the most common questions asked about the Clery Act. For more information, see the Student Press Law Center's publication, "Covering Campus Crime: A Handbook for Journalists," available from the SPLC. Another useful resource is the Security on Campus Web site.8

CAMPUS CRIME STATISTICS

Which schools must comply with the statistical reporting requirements?

All post-secondary institutions, public and private, receiving federal financial assistance (for example, institutional research grants, federal work-study assistance or other grants for students and National Direct Student Loans) are covered. Virtually every post-secondary institution receives some form of federal assistance.

What does this section of the act require?

Colleges and universities are required to publish and distribute an annual security report that, among other things, contains: (1) campus security policies and procedures, (2) the law enforcement authority status of security personnel, including their working relationship with state and local police agencies, (3) a description of drug and alcohol abuse, crime prevention and sexual assault education programs available to the campus community, and (4) actual campus crime statistics.

What types of crimes must be included in the statistical report?

Statistics must be maintained for the following crimes and violations: (1) criminal homicide, which must be separated to distinguish between (a) murder and nonnegligent homicide and (b) negligent manslaughter, (2) sex offenses (separated to distinguish between forcible and nonforcible acts), (3) robbery, (4) aggravated assault, (5) burglary, (6) motor vehicle theft and (7) arson. Where an arrest or disciplinary referral is made, a school must also report statistics concerning: (9) liquor law violations, (10) drug law violations and (11) illegal weapons possession.9

As part of a hate crimes provision in the law, statistics must also be maintained for crimes in categories (1)-(8), above, or any other crime involving bodily injury, in which the victim was intentionally selected because of his or her actual or perceived race, gender, religion, sexual orientation, ethnicity or disability.

Additionally, crimes must be broken down based on whether they occurred: (1) on campus, (2) in a student "dormitor[y] or other residential facilit[y]," (3) in or on a noncampus building or property, or (4) on public property. (See definitions of different reporting areas below).

Finally, where an incident involves more than one crime (for example, a victim is murdered after he is robbed), the "Hierarchy Rule" requires that the most serious crime be included in the statistical report.10

Who must report crimes?

The act requires that campus security personnel and any "official of an institution who has significant responsibility for student and campus activities" (which, according to the regulations, would specifically include, for example, residence hall directors, coaches, faculty advisers to student groups, the director of the student center, etc.) report acts of campus crime for inclusion in the annual report.11 Schools must also make a good faith effort to obtain information from local police for both on-campus and off-campus public property crime. (See further discussion, below).

Is it necessary that a crime be prosecuted before it is reported?

Any action that would constitute a crime in categories (1)-(8) above must be included in the report whether it is prosecuted by local law enforcement officials, campus judiciary or no one at all. In cases involving liquor or drug violations or weapons possession, the information must be included in the annual report where either an arrest is made or the accused is referred for campus disciplinary proceedings.12

I know of a student that visited the student counseling center after she was date-raped last year, but my school's report lists "zero" sexual assaults. What gives?

The 1999 regulations change existing Department policy13 and exempt "pastoral or professional counselors" from having to report statistical information about crimes that are reported to them. However, at their discretion, they may refer students to a voluntary, confidential reporting program if their school has one.14 To qualify as a mental health or pastoral counselor exempt from having to report crimes, a person must be providing counseling as part of his or her official duties at the school and be functioning within the scope of his or her professional license or certification. The exemption does not include nonprofessional or informal counselors.15

Where must crime occur for it to fall under the mandatory reporting requirement?

Because the earlier version of the law resulted in both administrative confusion and charges of inaccurate reporting, the 1998 amendments and 1999 regulations clarify and expand the reporting area. Reporting is now required for incidents that occur "on campus, in or on noncampus buildings or property, and on public property."16

The term "campus" means "any building or property owned or controlled by" an institution "within the same reasonably contiguous geographic area of the institution and used by the institution in direct support of, or in a manner related to, the institution's educational purposes, including residence halls." It also includes "property within the same reasonably contiguous geographic area of the institution that is owned by the institution but controlled by another person, is used by students, and supports institutional purposes (such as a food or other retail vendor)."17

"Non-campus building or property" means "any building or property owned or controlled by a student organization recognized by the institution" and "any building or property (other than a branch campus) owned or controlled by an institution ... that is used in direct support of, or in relation to, the institution's educational purposes, is used by students and is not within the same reasonable contiguous geographic area of the institution."18

"Public property" is defined as "all public property that is within the same reasonably contiguous geographic area of the institution, such as a sidewalk, a street, other thoroughfare, or parking facility, and is adjacent to a facility owned or controlled by the institution if the facility is used by the institution in direct support of, or in a manner related to the institution's educational purposes."19

Based on these definitions, research facilities, athletic facilities used by a school (including a city-owned auditorium or stadium leased for school games), fraternity and sorority houses and other off-campus student housing that may not be owned by the university but which are operated pursuant to a contract with the school or otherwise "controlled" by it should all fall within the location categories for which crime statistics must be provided. Crimes that occur on privately owned property that is frequented primarily by students, but which is nevertheless not in any way "controlled" by the school (such as a favorite off-campus bar or an apartment complex) do not have to be included in the annual report.

How is off-campus crime information collected?

Because schools are required to report some crimes that occur off campus, they must make a "reasonable, good faith effort" to obtain crime report information from a local or state police agency.20

My school has limited its reporting according to a map it has published that labels areas as "on campus," "non-campus," and "public" property. Is this permitted?

Yes. The 1999 regulations allow a school to use a map to establish its reporting area.21 However, the map must be provided to the campus community and it must be an accurate depiction of the geographic area. Because such a map might shield a school from later claims that it failed to report crimes not listed on its map, it is essential that campus news media organizations request a copy of their school's map on a regular basis to ensure that it accurately reflects the campus area. If you find that your school's map improperly excludes certain areas from their reporting obligations, the Department has indicated that you should immediately contact its Office of Student Financial Assistance in the regional office for the state in which your school is located and seek a review.22

What period of time does an "annual report" cover?

The 1999 regulations indicate that the statistical information contained in each report should be based on the calendar year (Jan. 1 - Dec. 31) in which the crime was reported to campus officials.23 (Previously, schools were required to report crimes according to when they actually occurred.) In addition, annual reports are required to contain statistics for the three most recent calendar years.

When must the report be made available?

Beginning with the 2000-01 school year, institutions must make their report available by Oct. 1 of each year. Currently, the due date is Sept. 1.24

How can I get a copy of my school's report?

The law requires schools to "prepare, publish and distribute" their security report to all current students and employees. It also requires schools to alert student applicants to the availability of the report and provide a copy on request. The reports can either be mailed (through regular or campus mail), e-mailed or hand-delivered in the form of part of a publication that is distributed to the campus community. The 1999 regulations also allow schools to meet the distribution requirement by posting the report on the Internet (or a school's Intranet) provided the school properly notifies the campus community of its availability online and offers to provide a paper copy of the report on request.25

Finally, each year The Chronicle of Higher Educationpublishes a comprehensive listing of crime statistics gathered from the crime reports compiled by schools across the country.26

What are the penalties for noncompliance?

An institution that does not comply with the Clery Act (which includes providing inaccurate information) risks being fined up to $25,000 for each violation and could lose its federal funding.27

What can I do if my school is not following the required procedure or is providing inaccurate statistics?

If, despite your requests, school officials fail to meet their reporting obligations, you should file a written complaint with the director of the Regional Office of the Department of Education that serves the state in which the school is located.28 Carefully document all contact with the Department and ask that it notify you of its findings.

DAILY CAMPUS POLICE LOG

The most important change in the law relating to campus crime reporting is the requirement that colleges and universities keep and maintain daily campus police or security department crime logs and make them readily available for public inspection.29

Who must comply with the law?

All post-secondary institutions, public and private, receiving federal financial assistance.

What does the act require?

The college or university must "make, keep and maintain a daily log, written in a form that can be easily understood, recording all crimes reported" to the police or security department and make that log "open to public inspection."30 The law does not allow police or security officials to simply read the log to a requesting reporter or student. The log must be physically available for "public inspection."

Do officials have to provide a photocopy of the log to reporters?

The Clery Act does not address this question. Hopefully, in the interest of promoting accurate reporting, most schools would offer to do so. In fact, most public schools are required to provide a photocopy of public records, which would include the daily police log, pursuant to state law.

When must the log be made available?

The log must be open to public inspection during the police or security department's normal business hours. A business day is defined as Monday through Friday, excluding days when the institution is closed.31 Schools are responsible for ensuring that the offices be properly staffed and able to handle requests during these times.

When must information be added to the log?

Crimes must be added to the log within two business days of the initial report being made to the campus police or security department. Officials are also required to add new information about a previously recorded crime to the log within two business days.32

How long must campus officials keep old logs?

Logs for the most recent 60-day period must be open to public inspection during normal business hours. Information older than 60 days must be made available within two days of a request for public inspection.33

What crimes must be included in the log?

All crimes reported to the campus police or security department must be included in the daily log. Unlike in the statistical report, there is no set list of crimes.

Where must crimes occur to be included in the log?

Any crime that occurs "on campus, on a noncampus building or property, on public property or within the patrol jurisdiction of the campus police or the campus security department" and is reported to them must be included in the log.34 This is potentially a larger reporting area than that required for the statistical report. For example, if campus police respond to a call from an off-campus location (such as a call from students living in a private apartment complex), they would be responsible for reporting any criminal activity they find in the school's crime log because the crime would have occurred within their patrol jurisdiction.

What must the log entries contain?

The (1) nature, (2) date, (3) time and (4) general location of each crime and (5) the disposition of the complaint, if known.35 A school can include additional information if it chooses (and may be obligated to do so under a state open-records law).

It is important to remember that the law requires that the information be provided in a "form that can be easily understood." If your school lists a location as simply "campus," for example, such conduct should be challenged and reported both to the Department of Education and to the SPLC.

Is there anything exempt from disclosure under the law?

A school will not have to release information in the log if (1) disclosure of that information is prohibited by law or (2) disclosure would jeopardize the confidentiality of the victim.36 Information can also be withheld if (3) there is clear and convincing evidence that the release of the information would: (i) jeopardize an ongoing criminal investigation or (ii) the safety of an individual, (iii) cause a suspect to flee or evade detection, or (iv) result in the destruction of evidence.37 The Department has indicated that these exemptions should be interpreted narrowly and that an institution may only withhold the specific information required to avoid the above risks. Moreover, once the risk has passed, the institution must disclose all information.38

Is it necessary that a crime be prosecuted before it is reported?

No. Any complaint of activity that would constitute a crime and that is reported to a campus police or security department must be included in the crime log whether it is prosecuted by local law enforcement officials, the campus judiciary or no one at all.39

What are the penalties for nondisclosure?

The U.S. Department of Education can impose financial penalties of up to $25,000 per violation. In extraordinary cases, the Department is authorized to withhold all federal funds from a noncompliant school.

I attend a state college, and our campus police have always provided us with access to their police blotter and other crime records, as required by my state's open-records law. These records typically contain more information than that now required by the Clery Act. Does the new federal law mean that they can get away with providing less information than before?

Absolutely not. Department officials have characterized the Clery Act as a "floor" that establishes the minimum campus crime reporting requirements; schools must continue to observe both federal and state law.40 In most cases, this will require that campus police or security departments at public schools provide additional information on their log (for example, names of those accused or arrested, complainants' names, actual addresses, more detailed information about the incident, name of responding officer, etc.), as required by state law. Maintaining a separate state and federal crime log is neither required nor suggested.41 For more information on the specific requirements of your state open records law, see the online version of Tapping Officials' Secrets, published by the Reporters Committee for Freedom of the Press.42

For help with filing a state freedom of information request, you can use the SPLC's automated FOI letter generator, available on our Web site.43

What should I do if my school is not complying with the crime log provision of the Clery Act?

File a written complaint with the director of the Regional Office of the Department of Education that serves the state in which your school is located.44 Carefully document your contact with the Department and ask they notify you of their findings.

TIMELY REPORTS

What is the "timely reports" requirement?

This requirement imposes an important-but frequently overlooked-responsibility on schools. In addition to the annual statistical report and daily police log, the Clery Act requires that schools make "timely reports to the campus community on crimes considered to be a threat to other students and employees ..."45

Which schools must comply with the timely reports requirement?

All post-secondary institutions, public and private, receiving federal financial assistance.

What crimes are subject to the timely warning provision?

Only those crimes required to be included in a school's annual statistical report (including hate crimes) that present an ongoing threat to students and employees will trigger the school's obligation to issue a timely warning.46 (See list above).

Which school officials are responsible for making a timely report?

All campus security personnel and any "official of an institution who has significant responsibility for student and campus activities" (see discussion in the statistical report section, above) are responsible for issuing timely warnings.47 Significantly, a school is also responsible for warning the campus community about qualifying crimes that are reported to local police agencies (for example, an unsolved sexual assault or a robbery that occurs near campus).48 Such a requirement presumes that campus police will make a reasonable, good faith effort to obtain relevant information from nearby state or local law enforcement agencies. As with the statistical report, professional and pastoral counselors are exempt from mandatory reporting.49

How much time does a school have to issue a timely report?

The law does not define "timely." However, because the purpose of the requirement is to enable the campus community to protect itself, it can strongly be argued that any significant amount of time that passes between when a crime that could present an ongoing threat occurs and when the public is notified violates the law's intent. Clearly, it would seem that a lapse of more than 24 hours would be unreasonable.

How must the report be distributed to the campus community and what must it contain?

Unfortunately, neither the law nor the regulations provide much detail. However, they do state that a timely report must "be provided to students and employees in a manner that is timely and that will aid in the prevention of similar occurrences."50 Accordingly, schools have an obligation to quickly and actively notify individuals in the campus community (as opposed to passively making the report available on request) of a threat. Further, the report must contain enough information about the crime to allow students and employees to protect themselves. At a minimum, that would reasonably seem to include specific information about what happened, when and where it occurred and a description of any suspect(s), if available. It can be argued that alerting the campus news media would be a part of any reasonable notification process.

What should I do if my school ignores the timely reports requirement?

File a written complaint with the director of the Regional Office of the Department of Education that serves the state in which your school is located.51 Schools that fail to provide adequate timely reports can be fined up to $25,000 per violation and risk losing their federal funding.

1 20 USC 1092(f).
2 In an attempt to clarify some of the law's provisions and provide for greater compliance, the U.S. Department of Education issued formal regulations in April 1994, 59 Fed. Reg. 22,314 (April 29, 1994), and June 1995, 60 Fed. Reg. 34,427 (June 30, 1995)(34 CFR section 668), and sent out a "Dear Colleague" letter in May 1996, U.S. Dept. of Education "Dear Colleague" letter, GEN-96-11 (May 1996).
3 See, e.g., Campus Crime: Difficulties Meeting Federal Reporting Requirements, GAO/HEHS-97-52 (March 1997). Information on obtaining General Accounting Office reports is available at: http://www.gao.gov.
4 H.R. Res. 470, 104th Cong., 2d Sess. (1996).
5 20 USC section 1092(f)
6 20 USC §1232g(b)(6)(B)-(C) states that the "final results" of campus disciplinary proceedings involving crimes of violence or nonforcible sex offenses are not prohibited from release under the Family Educational Rights and Privacy Act (FERPA), also known as the Buckley Amendment, when the accused is found guilty in that proceeding. Because of this change, most public schools will be required to release such information under their state open records law. Private schools have the option to do so.
7 64 Fed. Reg. 59,060 - 59,073 (Nov. 1, 1999)(to be codified at 34 CFR §668.46).
8 http://campussafety.org.
9 Complete regulatory definitions for these crimes can be found at: http://www.campussafety.org/CSA/ucrdef.html
10 34 CFR 668.46(c)(7). The list of crimes, above, are ranked in descending order of importance. The rule contains an exception that requires that all crimes committed during an arson be reported
11 64 Fed. Reg. 59063.
12 See 34 CFR 668.46 (c)(7) which provides that schools must rely upon the FBI's UCR handbook when determining what constitutes a reportable crime. Chapter 1 of that handbook makes clear that the inclusion of a crime is not dependent on prosecution or a finding of guilt.
13 See Dept. of Education letter to Moorehead State University (Sept. 13, 1996) stating that "officials of the institution involved in student counseling are not excluded from the institution's statistical reporting obligations (counselors are excluded only from the timely warning requirements of 34 CFR 668.47(e))."
14 64 Fed. Reg. 59069-70 (1999) (to be codified at 34 CFR §668.46(c)(6)).
15 64 Fed. Reg. 59064.
16 20 USC §1092(f)(1)(F); 64 Fed. Reg. 59069 (1999) (to be codified at 34 CFR §668.46(a).
17 20 USC §1092(f)(6)(A)(i).
18 20 USC §1092(f)(6)(A)(ii).
19 20 USC §1092(f)(6)(A)(iii).
20 64 Fed. Reg. 59070-71 (1999) (to be codified at 34 CFR §668.46(c)(9).
21 64 Fed. Reg. 59070-71 (1999) (to be codified at 34 CFR §668.46(c)(8).
22 64 Fed. Reg. 59065 (1999). The addresses and telephone numbers for the regional case team managers are available on the Education Department's Web site at: http://ed.gov/about.html.
23 64 Fed. Reg. 59070 (1999) (to be codified at 34 CFR §668.46(c)(2).
24 64 Fed. Reg. 59067 (1999) (to be codified at 34 CFR §668.41(e).
25 64 Fed. Reg. 59067 (1999) (to be codified at 34 CFR §668.41(e)(iii).
26 See, e.g., The Chronicle of Higher Education(May 28, 1999)
27 20 USC §1092(f)(13).
28 A list of offices is available at: http://ed.gov/offices/OIIA/Regions/.
29 20 USC §1092(f)(4).
30 20 USC §1092(f)(4)(B)(i).
31 64 Fed. Reg. 59069 (1999) (to be codified at 34 CFR §668.46(a)).
32 20 USC §1092(f)(4)(B)(ii).
33 64 Fed. Reg. 59071 (1999) (to be codified at 34 CFR §668.46(f)(5)).
34 64 Fed. Reg. 59071 (1999) (to be codified at 34 CFR §668.46(f)(1)).
35 20 USC §1092(f)(4)(A)(i)-(ii).
36 20 USC §1092(f)(4)(B)(i)
37 20 USC §1092(f)(4)(B)(iii)
38 Id.; 64 Fed. Reg. 59065 (1999).
39 See note 12, above.
40 See, e.g, Dept. of Education Negotiated Rulemaking Session, April 8, 1999.
41 Id.
42 http://www.rcfp.org/tapping/index.cgi
43 http://www.splc.org/ltr_sample.html
44 A list of offices is available at: http://ed.gov/offices/OIIA/Regions/. Please also notify the Student Press Law Center so that we can keep tabs on compliance with the Act.
45 20 USC §1092(f)(3).
46 Id.
47 64 Fed. Reg. 59063
48 20 USC §1092(f)(3); 64 Fed. Reg. 59071 (1999) (to be codified at 34 CFR §668.46(e)(1)(ii)) .
49 64 Fed. Reg. 59071 (1999) (to be codified at 34 CFR §668.46(e)(2)).
50 20 USC §1092(f)(3).
51 A list of offices is available at: http://ed.gov/offices/OIIA/Regions/.