On June 23, the U.S. Department of Education, Office of Postsecondary Education, published the 2016 Edition of The Handbook for Campus Safety and Security Reporting, as required by the Clery Act (the "Handbook"), available at https://www2.ed.gov/admins/lead/safety/handbook.pdf
Significantly, the Handbook incorporates the new reporting requirements for campus safety and security from the Violence Against Women Reauthorization Act of 2013 ("VAWA") including statistics and policies related to dating violence, domestic violence, sexual assault, and stalking incidents and Hate Crimes.
This Alert is not intended to provide an in-depth analysis of all changes presented in the 2016 Handbook, but highlights some of the significant changes, particularly those that will need to be considered when finalizing your institution's 2015 data for the October 2016 Annual Security Report. In addition, the Department of Education has stated that it will rely upon the 2016 Handbook when conducting compliance reviews.
What is "On-Campus"?
The geography definitions have not changed, but the Handbook provides helpful guidance and context to determine what is included within the Clery reporting requirements:
- "Owned or controlled" This includes institution-associated foundations, university holding companies, alumni groups, athletic boosters, hospitals, and medical centers.
- "Reasonably contiguous" It is reasonable to consider property within one (1) mile of the campus border.
- "Organized program of study" A location that offers courses in educational programs leading to a degree, certificate, or other recognized credential.
- "On-campus student housing" This includes parking facilities and dining halls that are physically attached to and accessed directly from student housing facilities.
- Take-away: This is a good time to re-evaluate what you consider to be "on-campus." Consider meeting with your facilities and finance offices to create a list of university owned, controlled, and utilized real estate.
What about Noncampus Properties?
The Handbook encourages institutions to look at factors such as frequency of use and the nature of the agreement regarding the institution's scope of the ownership or control of the space.
For example, if study abroad students reside in a hotel that the institution does not own or control, it is not a "noncampus property" for which data must be included. But if the study abroad program stays in the same hotel, every year, the institution must include portions of that hotel in its "noncampus" geography, for the times and dates specified in the rental agreement.
- Take-away: As your institution enters into contracts for off-campus student housing or programs, remember to address and document the details regarding institutional control. Your Student Life, Study Abroad, and Athletics Departments should be informing the appropriate Clery contacts for your institution so that accurate record keeping can be made.
Clery Crime Classification
The new Handbook contains the most significant changes -- and most immediate impact -- in Chapter 3. The VAWA Offenses and Hate Crime definitions will require important, speedy attention by your institution to ensure that the October 2016 report follows the appropriate definitions for the reportable offenses.
In the Criminal Offenses category, a significant change is the reclassification of sexual assault from "forcible/non-forcible" to "rape, fondling, incest, and statutory rape." The institution is required to report all incidents of sexual assault, regardless of consent.
In addition, "negligent manslaughter" is renamed "manslaughter by negligence." More context and clarification is provided for aggravated assault and burglary. For example, if a student notes that the offender was "invited into" his/her dorm room, then it may not be burglary.
- Take-away: Train your campus security authorities to document these details, such as type of weapon, seriousness of injury, type of entry (forcible, unlawful, attempted, etc.) to assist in the proper classification.
In the Hate Crimes category, the Handbook provides updated definitions for a hate crime to include, sexual orientation, gender, and gender identity. Regarding gender identity, the phrase "gender expression" has been replaced with "actual or perceived gender identity" and includes trangender and gender non-conforming. In addition, the Handbook now utilizes two different definitions for ethnicity and national origin.
- Take-away: Update your definitions and remember that the Hierarchy Rule1 does not apply for arson, sexual assaults, and hate crimes.
In the VAWA Offenses category, we see the most changes. Everyone on campus involved in Clery reporting and policy should take some time to review the VAWA Offenses portion of Chapter 3 and the entire Chapter 8 of the Handbook.
- Take-away: Update your institution's Title IX and Clery trainings to ensure a thorough understanding of the requirements and definitions. For example "dating violence" is not limited to circumstances where the victim states that he/she was "dating" the offender. Rather, it applies to a social relationship of a romantic or intimate nature. The institution is responsible to determine what fits within this definition, even if the victim or third party use terms such as "hanging out" or "not exclusive."
In the Arrests and Disciplinary Referral for Violation of Weapons, Drug Abuse, and Liquor Laws category, the significant change is that arrests and referrals for these incidents are not covered by the Hierarchy Rule. In other words, if there is a single incident that results in both a Criminal Offense and a Weapons, Drug Abuse, or Liquor Law violation, both are counted. Under the 2011 version of the Handbook, the Weapons, Drug Abuse, or Liquor Law violation was not counted.
Unfounded Crimes is a new descriptor required for your institution's report in October 2016. The 2016 Handbook provides additional clarity and several examples on what is required to make the "unfounded" determination.
- Take-away These new definitions must be used when compiling your institution's 2015 statistics for publication in October 2016. However, you do not have to reclassify the previously-reported data for 2013 and 2014.
- Take-away Consider partnering with Student Conduct and Human Resources to ensure offenses are being accurately described, recorded, categorized, and counted.
Statistics are to be collected based on reports to your CSAs (all persons identified as a "Campus Security Authority"), police or security, or local law enforcement and should be "counted" even if there was no investigation.
1 The FBI's UCR Hierarchy Rule is used in counting multiple offenses. "Under this rule, when more than one Criminal Offense was committed during a single incident you should only count the most serious offense." See 34 CFR 668.46(c)(9); 2016 Handbook pages 3-24 and 3-25.
The Handbook clarifies that a CSA is not responsible for investigating or reporting incidents that are received indirectly, such as those that are overheard or mentioned during class discussions.
- Take-away: Consider a "refresher" training for your CSAs to ensure that each understands that he/she is a CSA and what those duties require. In addition, remember that your Title IX coordinator is a CSA. However all Title IX "responsible employees" are not necessarily CSAs. In addition, when training your Resident Assistants, specifically address whether you consider them to be a CSA and what their obligations are.
New Requirements Related to Dating Violence, Domestic Violence, Sexual Assault, and Stalking
The information contained in Chapter 8 of the Handbook could serve as a stand-alone Alert. At the heart of this chapter are the 2013 VAWA amendments that require very specific proactive steps by the institution to have policies and procedures in place regarding how it will respond to dating violence, domestic violence, sexual assault, and stalking, as well as preventive educational programs and campaigns. However, these policies, practices, and programs should be tailored to how your institution will address the issues.
Regarding educational program and campaigns, while the institution is not required to make attendance mandatory for all students and employees, the regulations require the institution to make a good faith effort to ensure that new students and employees are provided with the educational opportunities that promote awareness and teach prevention of dating violence, domestic violence, sexual assault, and stalking.
- Take-away: Integrate dating violence, domestic violence, sexual assault, and stalking prevention/awareness programs into new student and employee orientation.
The written policies and procedures can be specific to your institution, but there are certain structural components that must be included such as:
- The victim's process - including notice about the importance of preserving evidence and information on how and to whom the alleged offense should be reported and information on the involvement of law enforcement.
- The victim’s process - including notice about the importance of preserving evidence and information on how and to whom the alleged offense should be reported and information on the involvement of law enforcement.
- The victim's rights - as applicable to secure protective orders and the institution's responsibility for honoring such an order.
- The victim's confidentiality - how the institution will protect the confidentiality of victims and the conditions and process for when disclosure may be required.
- Available accommodations and protective measures
- The evidentiary standard to be applied
- The possible sanctions and reinstatement requirements for the offender
- Take-away: Include Student Conduct and Campus Security in your discussion, review, and updates of the policies and procedures.
Producing the Annual Security Report ("ASR")
Again, the requirements in this new Handbook apply to the 2015 crimes that will be included in your institution's forthcoming October 2016 report.
All statistics, except Hate Crimes and Unfounded Crimes, must be presented in tabular format. Your institution has the option to present Hate Crimes and Unfounded Crimes in tabular or descriptive format.
The Handbook contains helpful information regarding corrections or updates to a previous ASR. If you updated statistics for a previously-reported year, you must update each ASR that contains that year's statistics. If you change a policy or procedure, explain the reason for the update and remember to redistribute it to your campus community.
While the 2016 Edition of the Handbook for Campus Safety and Security Reporting is presented in plain and easy to follow language, the Womble Carlyle Education and School Law Team is ready to assist you in navigating these new guidelines, recommending best practices, and providing training to support your institutions on-going compliance efforts.