Department of Education releases new Clery Act Appendix; Rescinds 2016 Handbook for Campus Safety and Security Reporting

On October 9, 2020, the Department of Education (the “Department”) posted an Electronic Announcement announcing the rescission of and replacement for the 2016 Handbook for Campus Safety and Security Reporting. Through this announcement, the Department is rescinding the guidance in the 2016 Handbook and replacing it with a Clery Act Appendix to the Federal Student Aid (“FSA”) Handbook. The electronic announcement identifies and explains the significant changes between the 2016 edition and the new Clery-related Appendix. The Department anticipates that this rescission and publication of the new Appendix will help simplify Clery compliance. 

In the announcement, the Department explained that much of the 2016 guidance was outside of the scope of the relevant statutory (20 U.S.C. 1092) and regulatory (34 CFR 668.41 and 668.46) authority. As a result, the Department is eliminating guidance that extended beyond the statutory and regulatory requirements. Importantly, the rescission will not retroactively apply to previous Department determinations regarding Clery Act violations, fines, enforcement actions, or any other related actions by the Department.

The Department highlighted the following list of significant changes to the 2016 edition that are found in the new Appendix.

• Clery Geography –
For many institutions, determining what does – and does not – constitute Clery geography can be very difficult. While Chapter 2 of the 2016 edition attempts to clarify some of the details, it may have expanded the definition beyond the intent and authority of the legislation and resulted in confusion and unhelpful over-reporting. The revised language applies the specific regulatory requirements and attempts to provide clarity, without additional requirements, to terms defined in 34 CFR 668.46(a).

• Clery Crimes –
The new Appendix has deleted all definitions for Clery crimes from Chapter 3 of the 2016 edition and replaced them with references to the appropriate regulatory-defined sources at 34 CFR 668.46(c)(9) and Appendix A to subpart D of part 668. The explanations, summaries, and examples provided may have, at times, created misperceptions and confusion for institutions attempting to properly interpret and apply the definitions.

• Campus Security Authorities –
The Appendix will strictly adhere to the definition of campus security authority (CSA) and will respect institutions’ discretion in their reasonable determinations of who constitutes a CSA. The 2016 edition expanded the definition of a CSA to include individuals on campus that should likely not be designated so under a strict interpretation of the regulatory framework. The 2016 edition took an expansive view of the phrase “significant responsibility for student and campus activities” found at 34 CFR 668.46(a). As a result, the Department’s new guidance makes clear that it is up to an institution to identify which individuals are CSAs and it is beyond the Department’s authority to disagree with that reasonable determination.

Required Policy Statements
The Higher Education Act of 1965, as amended, (“HEA”) and the Department’s regulations require that institutions include several policy statements in the Annual Security Report. The Appendix provides a list of the required contents , including but not limited to:

1) Policies regarding alcoholic beverages and underage drinking laws
2) Policies regarding illegal drugs and applicable federal and state drug laws
3) Programs on substance abuse
4) Programs to prevent dating violence, domestic violence, sexual assault and stalking, and the procedures institutions will follow when such crimes are reported
5) Information regarding sex offenders
6) Descriptions of emergency response and evacuation procedures
7) Policies regarding missing student notifications
8) Campus crime statistics
9) Policies regarding procedures for reporting criminal actions or other emergencies on campus
10) Policies on security of and access to campus facilities
11) Policies on enforcement authority of security personnel; working relationship of campus security personnel with State and local police agencies; accurate and prompt reporting of crimes; pastoral and professional counselors
12) Programs on campus security procedures and practices

Publication and Reporting
As previously announced, the October 1, 2020 deadline for Clery Reporting and the Annual Security Report (ASR) was extended to December 31, 2020. This Electronic Announcement does not change that extension.

Institutions must provide notice of the availability of the Annual Security Report and the Annual Fire Safety Report (if applicable) to all current and prospective students and employees. This notice must include: 1) a statement of the report’s availability; 2) a statement that a paper copy will be provided upon request and how to obtain one; 3) a brief description of the contents; and 4) the exact electronic address of the report.

Appropriate publications and mailings of the Annual Security Report and the Annual Fire Safety Report include:
• Direct mail to each individual through the post office, campus mail, or e-mail
• Publications provided directly to individuals
• Posting on an Internet or intranet website (subject to specifications in 34 CFR 668.41(e)(2) and (3))

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The opinions expressed on this blog are those of the author and are not to be construed as legal advice.

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