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Clery Act Requirements and Crime Reporting Compliance Continues to Challenge California’s Colleges and Universities Report Number: 2017-032

Introduction

Background

According to the U.S. Department of Education (U.S. DOE), choosing a postsecondary educational institution (institution) is a major decision for students and their families, and along with academic, financial, and geographic considerations, the issue of campus safety is a vital concern. To help inform students and their families about campus safety, the federal Jeanne Clery Disclosure of Campus Security Policy and Campus Crime Statistics Act (Clery Act) requires all eligible institutions that participate in federal student aid programs under Title IV of the Higher Education Act of 1965 (Title IV) to prepare, publish, and distribute annual security reports disclosing specified campus crime statistics and campus security policies.¹ According to the U.S. DOE, it is committed to assisting schools in providing students nationwide with safe environments in which to learn and to keeping students, parents, and employees well informed about campus security. To this end, the U.S. DOE issued regulations to implement the Clery Act, and its Office of Postsecondary Education (OPE) publishedThe Handbook for Campus Safety and Security Reporting (OPE handbook)—which it most recently updated in June 2016—to assist institutions with compliance.

Each institution must distribute its annual security report by October 1 to all enrolled students and current employees. An institution can fulfill this requirement in several ways, including by posting the report to its website and notifying students and employees of its availability. Each institution must also notify prospective students and employees of the report’s availability, provide a description of its contents, and establish a means of requesting a copy that it will provide. Further, each institution is required to submit its campus crime statistics to the U.S. Secretary of Education.

Clery Act Requirements

The Clery Act requires institutions to report statistics related to certain crimes, as Appendix A shows. Reportable crimes under the Clery Act include criminal homicides, sex offenses, robberies, and aggravated assaults. The Clery Act requires institutions to report their statistics related to crimes that occurred within the following specific location categories:

• On campus.
• On‑campus student housing facilities.²
• In or on noncampus buildings or property, such as off‑campus housing, that an institution owns or controls.
• On public property, such as a sidewalk, that is within a campus or immediately adjacent to and accessible from a campus, as we illustrate in Figure 1.

The institutions must annually report these statistics for the most recent and two preceding calendar years for which data are available.

Figure 1
Example of Locations for Which Institutions Must Report Clery Act Crime Statistics

Source: Adapted from the 2016 OPE handbook.

Figure 2 displays the process for institutions to compile and report their crime statistics. Specifically, the Clery Act requires institutions to disclose statistics related to all Clery Act crimes reported to campus security authorities, who include campus police; individuals who are not campus security authorities but are responsible for campus security, such as monitors at entrances to the institutions or at events; officials who have significant responsibility for student and campus activities; and individuals or organizations that campus security policies identify as responsible for receiving student and employee reports of criminal offenses. The Clery Act also requires institutions to make a reasonable, good‑faith effort to obtain and disclose crime statistics from local or state law enforcement agencies.

Figure 2
The Process for Institutions to Compile and Report Crime Statistics Under the Clery Act

Source: Federal law and regulations and the 2016 OPE handbook.

^* For purposes of this report, we define the individual or individuals appointed by an institution to compile and report crime statistics under the Clery Act as the institution’s Clery Act coordinator.

Additionally, the Clery Act requires institutions to include certain campus policies and procedures in their security reports. The text box gives examples of the types of policies institutions must include, which we refer to as security policies. Institutions must also include their procedures for students and others to report criminal actions or other emergencies that occur on campus.

The passage of the Violence Against Women Reauthorization Act of 2013 (VAWA) amended the Clery Act to include additional crimes, conduct, and policies that campuses must report. Under these VAWA provisions, which took effect March 7, 2014, institutions’ annual security reports must include policy statements regarding, among other topics, their programs to promote awareness of and prevent domestic violence, dating violence, sexual assault, and stalking, as well as the disciplinary procedures the institutions will follow if they receive reports of such conduct. In addition, VAWA requires institutions to report statistics for reported incidents of domestic violence, dating violence, sexual assault, and stalking. Further, it clarifies requirements for institutional disciplinary procedures, instructs campuses to provide specified education programs for students and new employees, and requires collaboration among the U.S. DOE, the U.S. Department of Justice Office of the Attorney General, and the U.S. Department of Health and Human Services to develop and disseminate best practices for preventing and responding to these incidents.

The U.S. DOE reviews institutions to determine whether they are complying with the requirements of the Clery Act; if it finds that institutions have substantially misrepresented the number, location, or nature of reportable crimes, the institutions may be subject to financial penalties. According to federal regulations, the U.S. DOE may impose a fine of up to $55,907 for each violation if it determines that an institution of higher education has substantially misrepresented the number, location, or nature of the crimes it should have reported under the Clery Act, as well as the policy disclosures it requires. According to its website, the U.S. DOE issued final determinations on campus crime program reviews of 25 institutions throughout the nation from 2015 through 2017, and it imposed fines on 17 of these institutions. Two of the institutions that received fines are located in California: Occidental College and the Master’s University and Seminary. For example, in a September 2017 letter, the U.S. DOE informed Occidental College that it intended to fine the institution $83,000 for failing to comply with the requirements of the Clery Act. In addition to issuing fines, the U.S. DOE may limit or terminate an institution’s participation in Title IV financial aid programs.

New Requirements Resulting From the Affirmative Consent Law

In 2014 the California Legislature enacted legislation in part to reduce inconsistencies in how institutions apply sexual violence prevention and campus disciplinary standards. According to one legislative committee analysis, the author proposed Senate Bill 967 (SB 967) because sexual violence continued to be a significant problem on college campuses across the country and recent cases raised serious questions about the ability of colleges and universities to provide safe learning environments, particularly for female students. The analysis further stated that the author believed it was necessary to provide colleges and universities with clearer guidance on how to prevent and respond to sexual assault cases and that the bill would strengthen protections for victims in California by requiring campuses to implement comprehensive prevention programs and victim‑centered sexual assault policies and protocols. SB 967 (affirmative consent law) became effective on January 1, 2015.³

The affirmative consent law requires the governing board of each California community college district, the California State University (CSU) Board of Trustees, and the governing boards of independent postsecondary California institutions to adopt policies concerning sexual assault, domestic violence, dating violence, and stalking. These entities must adopt these policies to receive state funds for student financial assistance. Further, the affirmative consent law requires that the entities’ policies include an affirmative consent standard as part of their disciplinary processes to guide institutions’ determinations of whether both parties gave consent to sexual activity.⁴ Although the affirmative consent law requires the University of California (UC) Board of Regents to adopt these same policies, a subsequent section of the law states these provisions shall not apply to UC except to the extent that the UC Board of Regents, by appropriate resolution, makes the provisions applicable.

In addition, the affirmative consent law requires that in order to receive state funds for student financial assistance, such as Cal Grants, the systemwide offices must—to the extent feasible—enter into collaborative partnerships or other types of agreements with existing on‑campus and community‑based organizations to which they can refer students for assistance or through which they can make services available to students addressing sexual violence, domestic violence, dating violence, and stalking. The systemwide offices should also use these agreements to implement comprehensive prevention and outreach programs.

Scope and Methodology

Section 67382 of the Education Code requires the California State Auditor (State Auditor) to report to the Legislature every three years the results of an audit of not fewer than six institutions that receive federal student aid. This law requires the State Auditor to determine the institutions’ compliance with the requirements of the Clery Act by evaluating the accuracy of the crime statistics they report and the effectiveness of the procedures they use to identify, gather, and disseminate these data. The State Auditor previously issued audit reports on this subject in December 2003, January 2007, January 2010, October 2012, and July 2015.

To obtain an understanding of the requirements of the Clery Act, we reviewed relevant federal laws and regulations as well as the OPE handbook. Using factors such as institution type, student enrollment, number of crimes reported, and geographic location, we selected six institutions and performed audit work related to the accuracy of their crime statistics and their disclosure of campus security policies. The six institutions we visited and their locations are as follows:

• Azusa Pacific University (Azusa) in Azusa
• Bakersfield College (Bakersfield) in Bakersfield
• Berkeley City College in Berkeley
• Humboldt State University (Humboldt State) in Arcata
• San José State University (San José State) in San José
• West Los Angeles College (West LA) in Culver City

When selecting these six institutions, we deliberately chose two—Berkeley City College and West LA—that had reported no criminal offenses so that we could ensure that they had accurately reported crime statistics as the Clery Act requires.⁵ The most recent data available from these two institutions at the time we selected them for review were from 2015.

To evaluate the accuracy and completeness of the crime statistics from the other four institutions, we selected a portion of the most recent crimes they reported and examined each crime’s incident report from the institution’s security or police department. We also interviewed staff and reviewed relevant supporting documentation related to these crimes. To evaluate the accuracy and completeness of the statistics of the two institutions that reported no criminal offenses, we reviewed crime reports at each institution to identify any reportable crimes under the Clery Act and confirmed whether the institutions obtained crime information from local police departments. We also reviewed the institutions’ crime logs, evaluated their crime reporting processes, and interviewed representatives of local police departments to gain an understanding of the crime situations on and around the institutions.

In addition, we interviewed campus security authorities and knowledgeable staff at the six institutions about their processes for meeting Clery Act requirements, and we reviewed relevant supporting documentation when available to identify the processes they used for collecting crime statistics. Federal regulations permit institutions to trust certain information they receive from outside agencies; specifically, regulations state that institutions “may rely on” information or crime statistics they receive from local and state law enforcement agencies. Therefore, institutions are not required to verify the accuracy of statistics from local law enforcement agencies. We thus focused on the accuracy of the statistics that the institutions generated themselves, and we did not audit the accuracy of the statistics they received from local law enforcement agencies.

To ascertain whether the six institutions adequately disclosed required security policies, we reviewed their most recent annual security reports and interviewed staff. In addition, to determine whether the six institutions adequately disclosed security policies that are not required to be in the annual security reports, we reviewed their websites and relevant documentation they provided to us. To determine whether the institutions adequately notified current and prospective students and employees of the availability of their annual security reports, we reviewed relevant supporting documentation.

As part of our 2015 audit, we conducted a survey and received responses from certain institutions that indicated they had not fully complied with the Clery Act’s requirements.⁶ For this current audit, we followed up with 17 institutions that had previously indicated that they did not post their annual security reports on their websites and/or failed to notify their communities of the availability of their annual security reports. We reviewed the 17 institutions’ websites and other documentation to determine whether they had become fully compliant with these Clery Act requirements. We also followed up on the status of recommendations we made in our July 2015 report to each of the systemwide offices: the California Community Colleges Chancellor’s Office (Community Colleges Chancellor’s Office), the CSU Office of the Chancellor (CSU Chancellor’s Office), and UC Office of the President (UCOP). Finally, we assessed the extent to which the CSU Chancellor’s Office, UCOP, and the three districts of the community colleges we visited complied with the relevant provisions of the Education Code, including the affirmative consent law.

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Footnote

¹ Clery Act requirements apply to institutions that qualify as institutions of higher education, proprietary institutions of higher education, or postsecondary vocational institutions; that are not foreign institutions of education; and that meet other requirements outlined under federal regulations, such as offering fewer than 50 percent of their courses as correspondence courses and not having filed for bankruptcy relief. Title IV, as amended, provides funding to eligible students in the form of Pell grants and other federal student aid, including direct loans. Go back to text

² The OPE handbook states that on‑campus student housing includes housing for both officially and unofficially recognized student groups, including fraternities or sororities, if the institution owns or controls the housing or if the housing is located on property that the institution owns or controls. Go back to text

³ The affirmative consent law added section 67386 to the Education Code. This code was amended with nonsubstantive changes effective January 1, 2016. Go back to text

⁴ Affirmative consent is the affirmative, conscious, and voluntary agreement to engage in sexual activity. Go back to text

⁵ These institutions reported no incidents that were classified as criminal offenses for Clery Act purposes in 2015. However, for Clery Act purposes, OPE categorizes and reports drug, liquor, and weapons arrests separately from criminal offenses. Similarly, OPE categorizes VAWA offenses of domestic violence, dating violence, and stalking separately from criminal offenses, so we did not include these offenses and arrests in our selection process of institutions to review that reported no criminal offenses. Go back to text

⁶ In our 2015 report, we surveyed 79 campuses that we identified as having student enrollments of 500 or more and that had reported no criminal offenses to OPE for 2013. Go back to text

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