Risk Research Bulletin Student Affairs
Keeping Campus Informed and Prepared: The Clery Act’s Timely Warning and Emergency Notification Requirements
By Hillary Pettegrew, Risk Management Counsel
The Clery Act gives college students, parents, and employees information necessary to make educated decisions about safety. The law includes numerous mandates and requires all higher education institutions that receive federal student aid to publicize statistics about campus crime and to issue reports to the campus community about criminal activity and other dangerous circumstances. This Bulletin addresses the Clery Act’s timely warning and emergency notification requirements.
Background. Congress passed the Clery Act in 1990 and has amended it several times, most recently in response to the 2007 shootings at Virginia Tech, adding the emergency notification requirement in 2008. The U.S. Department of Education issued regulations implementing the 2008 amendments and has also issued a Handbook for Campus Safety and Security Reporting. The Resources section contains links to the Clery Act, the regulations, and the Handbook.
The Timely Warning Requirement The Clery Act requires institutions to establish policies and implement procedures to “make timely reports to the campus community” about certain crimes, known as “Clery crimes,” that may present a serious or continuing threat to students and staff. Clery crimes include:
Aggravated assault Manslaughter
Arrests or referrals for campus disciplinary Motor vehicle thefts action for liquor and drug law violations Murder Arson Robbery Burglary Sex offenses Certain hate crimes
Illegal weapon possession
The timely warning requirement is intended to alert the campus community to potentially dangerous criminal activity on or near campus and, by increasing awareness, to prevent similar or repeat occurrences. Institutions must issue a timely warning when a Clery crime is reported to campus security authorities or local police agencies, and considered to represent a serious or continuing threat to students and employees on campus or in the immediate area.
www.ue.org 2 | United Educators | Risk Research Bulletin
The regulations define “campus security authorities” broadly to mean:
An institution’s police or security department
Other individuals with campus security responsibilities (such as those monitoring access to campus facilities or property)
Individuals or organizations designated as those to whom students and employees should report crimes (e.g., the security policy of the University of California, Berkeley states that crimes can be reported to the chancellor’s office or the ombuds office, among others)
Officials who have significant responsibility for student and campus activities (which encompasses many employees in departments such as judicial affairs, student housing, and athletics)
When Is a Warning ‘Timely’? No clear rules explain what “timely” means under the Clery Act, but the Handbook states that an institution should issue a timely warning “as soon as the pertinent information is available.” The decision to issue a timely warning should be made on a case-by-case basis in light of the known facts, including the nature of a crime, any continuing danger to the campus community, and the risk of compromising law enforcement efforts. Campus police or public safety personnel with the appropriate training are usually best positioned to weigh these factors and judge when a timely warning is necessary. As a rule of thumb, institutions should err on the side of safety and risk issuing a possibly premature warning rather than delaying one too long.
The Emergency Notification Requirement Critics of Virginia Tech’s response to the 2007 campus shootings argued that the university should have issued a warning immediately after the first two victims were killed in a residence hall. Virginia Tech maintained that a timely warning was not required because the evidence suggested that the initial shootings were isolated incidents, and the killer had fled, indicating no ongoing threat existed. By the time the first alert was sent more than two hours later, the gunman was in a different campus building, where he killed 30 others and himself.
The timely warning requirement did not change after Virginia Tech. Instead, Congress created a new Clery Act mandate that each institution have and follow procedures to “immediately notify the campus community upon the confirmation of a significant emergency or dangerous situation involving an immediate threat to the health or safety of students or staff occurring on the campus.” TheHandbook defines immediate threat as “an imminent or impending threat,” giving as examples an approaching forest fire and an active fire in a campus building. While the timely warning requirement applies only to Clery crimes, the emergency notification requirement compels institutions to implement notification procedures in a wider variety of situations, including severe weather and natural disasters.
Under the regulations, an institution need not issue an emergency notification when, in the “professional judgment of responsible authorities,” doing so would compromise a response to the situation. The Handbook explains that it is the duty of each institution to identify “responsible authorities.” The regulations also clarified that if an institution issues an emergency notification relating to a crime, it does not have to issue a timely warning for that same crime, although the institution must provide follow-up information as necessary.
Emergency Response and Evacuation In conjunction with the emergency notification rules, institutions are required to implement emergency response and evacuation procedures. Schools must annually publicize these procedures to students and staff, test their operation, and document the tests. The annual test must include an exercise, drill, and appropriate follow-through activities designed for assessment and evaluation of emergency plans and capabilities. United Educators | Risk Research Bulletin | 3
Failing to Comply Institutions that fail to issue required Clery Act warnings and notifications, or to publish procedures for doing so, may be subject to Department of Education fines and negative publicity that can cause lasting reputational damage.
Fines and other financial penalties Individuals cannot sue an institution for violating the Clery Act. However, the Department of Education can investigate compliance. Typically, the department simply requires schools to correct any violations, but in cases deemed more serious, it can impose a $27,500 fine per violation.
Most fines have stemmed from violations of other Clery Act provisions, such as the collection and publication of crime statistics. However, several recent high-profile fines have resulted in part from failures to issue timely warnings.
Eastern Michigan. In 2008, Eastern Michigan University agreed to pay a fine of more than $350,000 after the department found numerous problems in its handling of a student’s rape and murder. The institution failed to issue any warnings about the crime, and initially misled the student’s family into believing she had died of natural causes. Beyond the record fine, three senior administrators were forced out of their jobs, and the university separately paid the student’s family $2.5 million to settle potential negligence claims.
Virginia Tech. In 2011, the department imposed a $55,000 fine on Virginia Tech after finding two Clery Act violations in connection with the 2007 shootings; it concluded that the institution did not provide a timely warning that day and that Virginia Tech’s published timely warning policy at the time was inadequate. In March 2012, however, an administrative law judge upheld Virginia Tech’s appeal of the fine. In addition, the families of two students who were killed filed suit, and in March 2012, a jury found Virginia Tech negligent for not warning the campus more quickly. The jury awarded each family $4 million, although state law would limit the recovery to $100,000 each.
“Random” compliance reviews In the past, most alleged Clery Act violations were investigated after complaints to the Department of Education, but in recent years the department has instigated its own compliance reviews. In 2011, for example, the department found assorted Clery Act violations by approximately 15 institutions, several of which were fined. In at least 12 cases, the department selected the institutions for review randomly, rather than in response to any specific complaint.
No fines have yet been levied for violating the emergency notification requirements. Considering the department’s increased use of compliance reviews and the heightened sensitivities of the post-Virginia Tech era, however, institutions should assume that any compliance reviews will examine the sufficiency of their emergency notification procedures. It seems likely that eventually the department will fine an institution for failing to meet its emergency notification obligations.
In an extreme case of noncompliance with any Clery Act provision, the department could discontinue federal financial assistance to a school, although to date it has never imposed that severe sanction. Further, claims reported to United Educators demonstrate that, as with Eastern Michigan and Virginia Tech, institutions that fail to alert constituents to a threat or known danger can be exposed to civil lawsuits for negligence.
Strategies for Effective Compliance Institutions can use various strategies to enhance their ability to decide whether a timely warning or emergency notification is necessary and to ensure that any alert issued is effective. 4 | United Educators | Risk Research Bulletin
1. Develop and publish appropriate policies. The first and most important step is to include appropriate written policies on timely warnings and emergency notifications in annual security reports. These should address:
The circumstances requiring the institution to issue a timely warning or emergency notification. A policy can list the specific crimes that may warrant a timely warning, but it should state that the decision to issue a timely warning is made on a case-by-case basis and requires a determination that an ongoing threat exists. Similarly, the emergency notification policy might give examples of the types of circumstances that could require a notification, but it should emphasize that the list is not exhaustive and that officials need to decide on an individual basis whether any particular situation justifies a notification.
The employees responsible for issuing the timely warning or emergency notification. The policies should identify positions of those responsible for meeting the timely warning and emergency notification requirements. This includes being clear about which offices or employees should write or develop the warnings and who has the authority to distribute them. At many institutions, campus police or public safety has primary responsibility, but high-level administrators also may be involved. If so, list their titles.
The manner in which the timely warning or emergency notification will be distributed. While the Clery Act does not require any particular method of communicating either timely warnings or emergency notifications, an institution must describe all forms of communication that it may use. For timely warnings, institutions can use a combination of distribution methods, such as email, voicemail, website, social media postings, flyers, campus newspaper notices, media announcements, and text messages. The most effective methods may vary for different campus constituencies: Students, for example, may be more apt to read flyers in academic buildings and residence halls, while staff may more regularly check email. For emergency notifications, many institutions rely primarily on instant messaging technology that may require students and staff to “opt in” to receive alerts on cellphones or other electronic devices. Although some methods commonly used for timely warnings (e.g., flyers and newspaper notices) would not suffice for emergency notifications, others (e.g., website postings and voicemail) are more immediate and can supplement a messaging system for emergency notification. For some emergencies, a low-tech communication method (e.g., a fire alarm in the case of a gas leak) may be effective.
2. Train personnel on their responsibilities as campus security authorities. Every institution must take steps to ensure that administrators and relevant staff understand the timely warning requirement and their other obligations under the Clery Act. This means that institutions need to educate personnel on:
Who is a campus security authority
What crimes must be reported under the Clery Act
What obligation campus security authorities have to report crimes
Clery Act obligations should be included in new employee training for anyone who qualifies as a campus security authority.
Administrators and staff should also understand that the Family Educational Rights and Privacy Act (FERPA) does not preclude the sharing of information about Clery Act crimes. In fact, the Clery Act’s timely warning requirement overrides the privacy rights granted under FERPA. The only exception to this requirement under the law is for crimes disclosed to pastoral or professional counselors. United Educators | Risk Research Bulletin | 5
3. Educate personnel on the distinctions between “timely warnings” and “emergency notifications.” In Virginia Tech’s response to the Department of Education regarding the failure to issue a timely warning, the university argued that the department held it to standards that did not exist until the emergency notification requirement was later added to the Clery Act. This highlights potential confusion over the differences between timely warnings and emergency notifications. Many of the same campus personnel will likely be involved in decisions regarding both types of alerts, and institutions should train them on the distinctions. The Handbook outlines the differences and contains hypotheticals illustrating when an emergency notification, versus a timely warning, would be required:
Timely warnings apply only to Clery crimes that have occurred and may present a continuing safety threat, such as a series of armed robberies taking place in different campus parking lots over several weeks.
Emergency notifications may be triggered by crimes as well as such diverse events as severe weather (e.g., an approaching tornado), natural disasters (e.g., an earthquake), outbreak of communicable disease (e.g., meningitis), or an accident inside a campus building (e.g., a lab explosion). According to the Handbook, events such as a power outage, a campus closure due to snow, or a “string of larcenies” would not require emergency notification.
4. Coordinate compliance with local authorities. Campus authorities should coordinate with local officials to improve institutional compliance with the timely warning and emergency notification requirements. For purposes of timely warnings, for example, the 2011 Handbook recommends that colleges and universities work in advance with local law enforcement agencies and request that they promptly notify institutions of crimes that may present a threat to the campus.
Administrators without law enforcement training should defer to individuals with expertise to determine whether a crime presents an ongoing threat to the campus community. Questions to consider include:
Is the crime random or targeted to a specific individual?
Is the crime likely to be repeated?
Was a weapon used in the the crime?
Was material stolen that could imperil the community, such as master keys, hazardous materials, or identification?
Has a suspect been taken into custody?
If an institution educates local police about the Clery Act requirements, when an incident posing a continuing threat occurs, the institution ideally can come to a quick agreement with those officials about what information to release in a timely warning to the campus community. The institution nevertheless remains obligated to satisfy the timely warning requirement, even if local law enforcement advises against doing so.
As the Virginia Tech tragedy demonstrates, the decision whether to issue a timely warning is susceptible to second guessing. A report of the American Council on Education and the National Association of College and University Business Officers thus recommends that institutions document the reasons for the timely warning decision and maintain those records for later review.
Cooperation with off-campus authorities may be even more important in issuing emergency notifications. While a timely warning decision typically involves interaction with local police, emergency notifications can also require coordination with a broader range of individuals, such as state or municipal government officials, fire and rescue personnel, or health care experts. 6 | United Educators | Risk Research Bulletin
For example, the emergency notification provision requires an institution to initiate notification procedures once it confirms a qualifying emergency situation. According to the Handbook, this means that an official at the institution has verified the existence of a qualifying emergency, not that all details about that situation are available. In some cases, such as a gas leak in a campus building, campus officials can verify the emergency internally, but in others, such as a severe weather event or natural disaster, they will need to work with off-campus officials to determine the scope and immediacy of the event and decide whether an emergency notification is necessary.
Enhancing Campus Safety Is the Goal By adopting clear procedures for notifying campus constituents of a continuing threat or dangerous situation, institutions can comply with the Clery Act, commit to improving campus safety, and reduce their risk of lawsuits and costly sanctions, as well as negative publicity and perhaps long-term reputational damage.
Acknowledgment For reviewing this article prior to publication, United Educators wishes to thank Dolores Stafford, president and CEO of D. Stafford & Associates, LLC, and the former chief of police at the George Washington University.
Resources Jeanne Clery Disclosure of Campus Security Policy and Campus Crime Statistics Act http://uscode.house.gov/search/criteria.shtml Search the website for “Clery Act.” To find the pertinent sections, search for “(f) Disclosure of campus security policy and campus crime statistics.”
www.securityoncampus.org/newregs/66846.htm This link is to the Clery Act’s implementing regulations, 34 CFR 668.46 (effective July 1, 2010), including portions that focus on the timely warning and emergency notification requirements.
U.S. Department of Education, Office of Postsecondary Education. The Handbook for Campus Safety and Security Reporting, Washington, D.C.: Author, 2011. www2.ed.gov/admins/lead/safety/handbook-2.pdf The department updated and expanded its 2005 Handbook on Clery Act compliance. Chapter 6 (pages 97- 118) focuses on the timely warning and emergency notification requirements.
D. Stafford & Associates, LLC www.dstaffordandassociates.com D. Stafford & Associates is a professional services firm specializing in safety and security related issues on college campuses, including Clery Act compliance. The company conducts independent audits of Clery Act compliance and offers cost-effective training options to assist higher education institutions in meeting their Clery Act obligations.
Security on Campus www.securityoncampus.org/ This website, founded by the Clery family, provides explanations of the Clery Act as well as general information about campus crimes.
University of California, Berkeley Police Department http://police.berkeley.edu/clery/csainfo.html The Berkeley campus police website includes helpful information on Clery Act requirements, including explanations of campus security authorities’ responsibilities and a downloadable form for reporting crimes. United Educators | Risk Research Bulletin | 7
Sample Policies Ohio State University www.ps.ohio-state.edu/police/campus_safety/timely_warning_policy.php This page describes OSU’s policy on timely warnings (called “Public Safety Notices”) and differentiates them from emergency notifications (known as “Buckeye Alerts”). Campus community members must register separately for either alert and can register parents or spouses for Buckeye Alerts.
Example of OSU timely warning: http://dps.osu.edu/police/psn/CrimeAlert_web.php?id=161
University of Massachusetts Amherst www.umass.edu/umpd/alerts/ The University of Massachusetts campus police website describes its procedures for issuing timely warnings and emergency notifications. The former are posted on the website and in relevant residence halls, and copies are sent to the student newspaper and local media outlets, as well as by campuswide email. Emergency notifications are sent by text messages to subscribers’ cellphones.
Southern Methodist University http://smu.edu/pd/clerystats/2010%20ASR/cleryannualreport2010.pdf SMU’s 2010 annual security report describes the university’s timely warning procedures (page 12) and its emergency notification procedures (page 14). The timely warning section notes that the university may not issue a timely warning for every Clery crime reported because some do not present continuing threats. For emergency notifications, SMU states that “bullhorns, walkie-talkies, and runners delivering messages word- of-mouth” may be used to communicate if other channels fail in a disaster.
These links describe the respective institutions’ emergency notification systems:
George Washington University www.campusadvisories.gwu.edu/current.cfm?id=1629
Messiah College www.messiah.edu/emergency/text_alert.html
Virginia Tech www.alerts.vt.edu/
William Patterson University http://ww2.wpunj.edu/police/services/em-notif.dot 8 | United Educators | Risk Research Bulletin
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