A look into a hefty Clery Act fine in higher ed
The Clery Act requires colleges and universities participating in Title IV programs to take many security-related action steps to ensure compliance.
In addition to numerous statements of policy, the Annual Security Report must include statistics for certain crimes reported to have occurred on the institution’s “Clery geography” during the past three calendar years.
The Department of Education enforces the Clery Act, and it has the authority to issue civil monetary penalties for noncompliance. Initially, fines were set at $25,000 per violation.
This amount has been raised several times pursuant to the Federal Civil Penalties Inflation Adjustment Act, most recently in January 2018 when it was raised to $55,907 per violation.
This amount can be utilized for violations occurring after November 3, 2015. Those occurring prior to this date are subject to a fine of $35,000.
Case study: University of Montana
In September 2018, the University of Montana was fined $966,614 for Clery Act noncompliance. While the university has indicated that it will appeal, the fine currently represents the second highest ever issued.
Pennsylvania State University’s fine of $2.4 million from 2016 is still the largest. Montana’s penalty is substantially higher than what had been the second highest until recently—Eastern Michigan University’s $357,500 fine from 2007 (later settled for $350,000).
Based on information found in UM’s Final Program Review Determination (UBmag.me/fprd) and Fine Action Letter (UBmag.me/umfa), the Department of Education’s investigation covered 2009-10, and a part of 2011.
The review found the university had serious issues with compiling and disclosing crime statistics, including the underreporting and mishandling of numerous sex offenses. Due to these findings, the review was expanded to include additional years.
Last December, following the program review, the department accused the university of the following:
• a lack of administrative capability
• omitted and/or inadequate Annual Security Report policy statements
• failure to issue timely warnings in accordance with federal regulations
• failure to properly classify and disclose reported crimes, arrests and referrals
• failure to report crimes for noncampus property and separate campuses
• failure to establish an adequate system for collecting crime statistics from campus security authorities
• omitted and/or inadequate policy statements and statistics in the Annual Fire Safety Report
These findings cover a wide array of Clery Act matters. Notably, however, over half of the substantive discussion in the Final Program Review Determination relates to issues involving the collection, classification and disclosure of crimes.
In addition, the entire fine was premised on the underreporting of various crimes from 2013-16.
The university was assessed fines for the highest amount possible (either $35,000 or $55,907 depending on the year) for omitted violent crimes (rape, domestic violence, etc.) and lesser fine amounts for the omission of other types of offenses (burglary, disciplinary referrals for substance abuse violations, etc.).
Montana’s case is further evidence that the Department of Education has prioritized Clery Act compliance and is willing to use its enforcement authority to levy substantial fines for violating the law.
While failure to follow any aspect of the Clery Act can result in a fine, Montana’s case shows that the department considers the proper collection, classification and disclosure of crimes to be of the utmost importance.
As such, now is the perfect time for your institution to evaluate the sufficiency of its protocols related to gathering and disclosing crime statistics.
Hayley Hanson is chair of the education law practice at Husch Blackwell, and advises institutions on compliance and litigation matters. She helped create the Clery Compliance Toolset, an online tool to help colleges and universities navigate the complex requirements of the Clery Act. Ben Irwin is an attorney at Husch Blackwell, and concentrates his practice on compliance and governance issues.