Margolis Healy Clery Center 2013 Clery Compliance Talking Papers


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Margolis Healy Clery Center 2013 Clery Compliance Talking Papers

  2. 2. STEVEN J. HEALY MARGOLIS HEALY & ASSOCIATES, LLC The Clery Act is the official home for most campus safety and security legislation, including significant amendments in the aftermath of the Virginia Tech tragedy, including fire safety requirements that are now part of the safety and security related obligations, the U.S. Congress added mandates related to emergency response and evacuation, and emergency notification. In March of 2013, the Clery Act was again amended by the reauthorization of the Violence Against Women Act (VAWA) adding what is now widely known as the Campus SaVE Act. The Campus SaVE Act is one of the most significant and wide-ranging amendments in the history of the Clery Act. Given the renewed focus on Title IX sexual and gender violence requirements, institutions should acknowledge and identify the overlaps between the Clery Act and Title IX prevention, education, and response requirements. Below we outline some of the Lessons Learned from our work with institutions around the United States. • Institutions must embrace the spirit and intent of the Act –– Acknowledge the significant administrative burden and then work to get the resources to facilitate compliance –– Identify supporters throughout the institution – general counsel, chief of staff, president, dean of students; someone who understands the importance of the law and the ramifications of non-compliance –– Work collaboratively across the institution to build a strong safety and security program; every significant problem we see is related to lack of a coordinated approach with and between key Clery Act stakeholders –– Understand the intersection between the Clery Act and Title IX • The major themes and compliance challenges: –– Improper Classification and Under-Reporting of Crimes • This is specifically applicable to alcohol and drug violations and, more specifically, disciplinary referrals –– Lack of or Inadequate Policy Statements • Confidential reporting • Timely Warning • Emergency Response & Evacuation procedures • Campus SaVE implementation –– Inadequate Systems for Collecting Statistics from Required Sources • Again, this goes back to the need for strong coordination and collaboration with all the key offices on campus • Identifying, notifying, and training CSAs –– Compliance with the Drug Free Schools and Safe Communities Act • Development and implementation of a Drug and Alcohol Abuse Prevention Program There are proven strategies that institutions should embrace in order to enhance their compliance programs, but most importantly, you must work to ensure collaboration and coordination with all key stakeholders. THE CLERY CENTER PROCEEDING IN PARTNERSHIP CONFERENCE LESSONS LEARNED FROM GOVERNMENT REVIEWS AND ASSESSMENTS: IMPLICATIONS FOR CLERY COMPLIANCE © 2013 Margolis Healy & Associates, LLC. All rights reserved. 2
  3. 3. PAMELA HEATLIE, J.D. UNIVERSITY OF MICHIGAN Since the U.S. Department of Education’s Office for Civil Rights (“OCR”) issued its April 4, 2011 Dear Colleague Letter (“DCL”) on the topic of sexual harassment and sexual violence, institutions of higher education across the country have worked to ensure that their policies, procedures and practices align with OCR’s guidance. OCR has also conducted compliance reviews resulting in resolution agreements that provide further insight into its thought process regarding these issues and what it considers best practices. While the DCL offers guidance and the resolution agreements offer insight, the Campus Violence and Sexual Assault Elimination Act (“Campus SaVE”), which amends the Jeanne Clery Act, codifies some of the guidance initially set forth in the DCL, and expands upon it.1 Campus SaVE goes into effect on March 7, 2014. Implementing regulations have not yet been issued; however, the Department of Education’s expectation is that institutions will undertake good faith efforts to be in compliance with Campus SaVE by March. As a result, institutions of higher education should assess whether their policies, procedures and practices are consistent with both the DCL and Campus SaVE to ensure they are meeting the requirements of Title IX and the Clery Act. In reviewing the various resolution agreements and interacting with colleagues around the country, there are common themes that are negatively impacting institutional compliance and the ability to shift campus culture. While shifting culture is not, per se, related to compliance, even a cursory reading of OCR’s recent resolution agreements illustrates their focus on changing campus culture through, for example, increased transparency and training/prevention efforts. Institutions would be well served to view culture change (e.g., actions intended to increase the likelihood that an individual will bring their complaint forward to the institution versus keeping silent) as a component of increased compliance. While there are several common themes, three of the more common ones are: • People – having effective, properly trained staff who work collaboratively is critical. Staff who are ineffective or do not work collaboratively often cannot spot compliance concerns or, worse, create them. –– Sometimes this issue presents itself as an ineffective person who “everybody” knows is ineffective, yet no institutional action is taken. As a result, perhaps a complainant or respondent receives poor service or elects not to engage a process to avoid interacting with the person. There are a variety of reasons this can happen (e.g., the person is a child of a large donor, recently filed a discrimination complaint, etc.), but the institution needs to properly assess the situation. In essence, is avoiding this personnel issue preferable to providing a fair and effective process to individuals with sexual harassment/sexual violence concerns? Is it preferable to a potential federal compliance review and possible related media coverage? The institution will have to pick its poison, but should fully understand and assess its choices first. –– Sometimes the staff member is quite good at their job, but is perceived as biased or ineffective. If possible, that person’s reputation should be rehabilitated, since perception is a powerful influencer. Some ways of rehabilitating reputation include having a person who is highly respected “vouch” for the individual (of course this only works if that person truly believes the perception is inaccurate) or, if the problem is perceived bias, helping the staff member to avoid situations that are creating the appearance of bias. –– I cannot over emphasize how important it is that individuals across campus and the local community who work on these issues trust one another, coordinate their efforts and work collaboratively. This is particularly true of 1 Campus SaVE is set forth in section 304 of the Violence Against Women Reauthorization Act of 2013, which was signed into law by President Obama on March 7, 2013. THE CLERY CENTER PROCEEDING IN PARTNERSHIP CONFERENCE LESSONS LEARNED FROM GOVERNMENT REVIEWS AND ASSESSMENTS: IMPLICATIONS FOR CLERY COMPLIANCE © 2013 Margolis Healy & Associates, LLC. All rights reserved. 3
  4. 4. the relationship between campus/local law enforcement and those on campus who investigate/hear internal complaints. These individuals are often working on the same matters and can help or sometimes hurt each other’s work, depending on their level of coordination. They should know one another’s names; understand what they do, how they do it and why; and know the expectations they have of one another and why. It helps to have these staff members talk regularly about what’s going well and what could be going better, and changes they will make to address those issues. In essence, these staff members have individual functions and obligations, but should see themselves as part of a larger team with the collective goal of effectively addressing sexual harassment/sexual violence. –– Another reason it’s important for staff working on these issues to know one another and understand one another’s work, is to ensure that staff are not inadvertently (or perhaps intentionally) steering potential complainants towards one process or another (e.g., “You could file a complainant with ______, too, but their process seems really burdensome. But, of course, the choice is yours…”). • Policies/Procedures – sexual harassment/sexual violence concerns are different from other forms of student misconduct and institutional policies should reflect that. –– While it is possible for a general student conduct code to be used for sexual harassment/sexual violence complaints, it’s not a best practice. These cases are so different from general student misconduct cases that policies that attempt to address both become “except” policies (e.g., “Complainant and Respondent will then have the opportunity to ask one another questions, except in cases of sexual misconduct where all questions will be asked by the hearing officer,” etc.) This significantly increases the chances of students misunderstanding the policy or an administrator missing an exception and inadvertently creating a compliance issue. –– Most institutions have more than one policy that addresses sexual harassment/sexual violence. The institution may have a student code of conduct for undergraduates, one for graduate students, more for the students of various professional schools, a policy for staff, a policy for tenure-track faculty, policies for various types of non-tenuretrack faculty, provisions in collective bargaining agreements, etc. OCR conducted a compliance review of the University of Montana-Missoula, and one of its criticisms of the institution was the plethora of sexual harassment/ sexual violence policies it had. In particular, OCR found that the policies contained varying definitions of key terms, such as “sexual harassment,” and the policies were not cross-referenced so that a person reading one would even know that other sexual harassment/sexual violence policies existed or when one policy was used versus another. Every institution would do well to review its policies to ensure, at a minimum, that they are consistent in their terminology and give clear information about their applicability and relationship to other policies. • Practice – once you have developed your effective policies, procedures and practices, it can be valuable to assess whether they’re working as intended and are as transparent as possible. –– Institutions of higher education are complicated places. Exceptions are the rule. There are few easy to explain – and even fewer “one size fits all” – policies. This makes it quite challenging to help the campus community understand how the institution addresses any issue, including sexual harassment/sexual violence. Even so, it’s not impossible. It should be relatively easy to provide basic information about the complaint process to a potential complainant. They do not need to understand every nuance of every policy and procedure, like a Title IX Coordinator would. If it’s not fairly simple to give a succinct explanation of the process to a potential complaint, this is a significant problem for the institution, in that it may discourage individuals from coming forward with their concerns. THE CLERY CENTER PROCEEDING IN PARTNERSHIP CONFERENCE LESSONS LEARNED FROM GOVERNMENT REVIEWS AND ASSESSMENTS: IMPLICATIONS FOR CLERY COMPLIANCE © 2013 Margolis Healy & Associates, LLC. All rights reserved. 4
  5. 5. –– It’s also advisable to listen to individuals who have gone through your process and learn from them. For example, one institution, in its efforts to provide excellent support to complainants, learned that their efforts were having the opposite effect, in that complainants felt overwhelmed by all the well-intended calls and emails. Since then, significant effort has been made to coordinate support efforts so that complainants have more control of the type of amount of contact from the institution. –– In assessing your policies and procedures, consider whether there are ways to reduce the burden on the complainant and respondent. How many times do they have to recount the incident? Can that be reduced? Is it possible to have a fair process where the parties do not have to interact? The less burdensome a process feels, the more likely it is to be used and the more likely the process will develop a favorable reputation within the campus community. –– In addition to discussing these three common themes, I want to bring two other issues to your attention: • What it Means to Be Effective – Most institutions would agree that their goal is to eliminate sexual harassment and sexual violence within their campus community. Until it is eliminated, however, we know these incidents occur, and we have developed policies, procedures and practices to deal with them as effectively as possible. In general, one outcome of effective policies, procedures and practices is increased complaints. –– It’s important to set expectations with your higher level administrators and other stake holders across campus. They should understand that more complaints does not generally mean there are more instances of sexual harassment/sexual violence on campus or that the institution is doing something wrong. It means the institution is creating an environment in which individuals feel able to come forward with their concerns, which is precisely what the institution wants. Even so, unless these expectations are set, a dramatic increase in sexual harassment/ sexual violence complaints can feel like failure and erode support for the institution’s initiatives in this regard. It’s important to set these expectations early, so that when the increase comes it’s seen as a positive step toward reaching the institution’s overall goals. –– Be aware that the media will likely notice the increase in sexual harassment/sexual violence complaints. Try to use this to your advantage and discuss it with the media as the positive step that it is. Make sure the media is aware of the changes you’ve made to your policies, procedures and practices with the specific knowledge that it would lead to increased reporting. Ask the media to include a discussion of those policy changes along with the increased numbers, because you want to ensure everybody is aware of the institution’s efforts in this regard. The resulting story might still be negative, but some institutions have received positive press for their increased efforts related to sexual harassment/sexual violence despite significant year to year increases in complaints. –– If an institution has not seen an increase in complaints over the last few years, it should consider assessing its policies, procedures and practices. The assessment might include consideration of the three themes set forth above. It can also be very helpful to talk to campus advocates, counselors, religious advisors, etc., about their general experience with potential complainants and their understanding as to why individuals may not be coming forward with their concerns. THE CLERY CENTER PROCEEDING IN PARTNERSHIP CONFERENCE LESSONS LEARNED FROM GOVERNMENT REVIEWS AND ASSESSMENTS: IMPLICATIONS FOR CLERY COMPLIANCE © 2013 Margolis Healy & Associates, LLC. All rights reserved. 5
  6. 6. • What Not To Forget – Many items could fall under this heading, but the one I want to emphasize is Campus SaVE. –– Campus SaVE codifies some aspects of the DCL, but it also expands upon them. For example, Campus SaVE requires institutions to have procedures for investigating and hearing domestic violence, dating violence, sexual assault and stalking cases. By now, most institutions have such procedures in place for sexual assault cases, but may not have procedures that address domestic violence, dating violence and stalking that do not also have a sexual harassment/sexual violence component to them. –– It’s unclear what evidentiary standard is to be used for these cases. The DCL states that “preponderance of the evidence” is to be used for sexual assault cases. Perhaps the regulations or subsequent guidance from the Department of Education will clarify which standard is to be used for domestic violence, dating violence and stalking cases that do not also involve sexual harassment/sexual violence. –– It’s important to start thinking now about who might investigate/hear these types of cases on your campus. Investigators/hearing officers must be properly trained on these issues prior to assuming this work. It is not appropriate to assume that the individuals who investigate sexual harassment/sexual violence cases can or should investigate domestic violence, dating violence and stalking. Those individuals are likely good at their job because they are experts in civil rights law; they may have no skill or expertise in investigating these other matters. Institutions need to think now about who can perform this work and perform it well, and how the institution will fund that effort. –– As with sexual harassment/sexual violence matters, staff who conduct these investigations/hearings will have to develop a trusting and strong working relationship with campus and local law enforcement. Every institution should consider involving law enforcement as it develops its procedures and practices for addressing domestic violence, dating violence and stalking concerns, to ensure coordination and collaboration at the outset. THE CLERY CENTER PROCEEDING IN PARTNERSHIP CONFERENCE LESSONS LEARNED FROM GOVERNMENT REVIEWS AND ASSESSMENTS: IMPLICATIONS FOR CLERY COMPLIANCE © 2013 Margolis Healy & Associates, LLC. All rights reserved. 6
  7. 7. GABE GATES CLERY COMPLIANCE COORDINATOR, PENNSYLVANIA STATE UNIVERSITY Penn State has one of the most extensive Clery Act compliance programs in the country. Since the Clery Compliance office was established, we have taken significant efforts to enhance our policies, procedures, and practices. Below are our Lessons Learned. 1. Getting Institutional Buy-In • Senior Leadership –– Dozens of case studies and examples of ongoing program reviews that should peak interest. –– The monetary penalty does not scratch the surface. –– Is campus/student safety a priority? –– Perception of malicious intent to cover up. –– Perception the institution does not take reports of crime seriously. –– Perception of incompetence by those involved. –– Public Relations nightmare! –– Legal fees and sanctions against federal financial aid. –– Demoralizing for everyone involved. • Offices within the Institution –– Victim Resource Center –– Counseling and Psychological Services –– Judicial Affairs –– Title IX Coordinators –– Students –– CSAs –– General Counsel –– Human Resources One person/office cannot be successful in complying with all aspects of the Clery Act. I strongly recommend the implementation of a “Clery Interdisciplinary Team” to guide the institution toward compliance. 2. Record Keeping • If it is not documented, it didn’t happen –– Timely Warning Decisions THE CLERY CENTER PROCEEDING IN PARTNERSHIP CONFERENCE LESSONS LEARNED FROM GOVERNMENT REVIEWS AND ASSESSMENTS: IMPLICATIONS FOR CLERY COMPLIANCE © 2013 Margolis Healy & Associates, LLC. All rights reserved. 7
  8. 8. • Proper incident classification –– Documenting the offense, not the charge –– Daily Log red flags, i.e. “unfounded” and “Admin Info” • CSA List in constant transition –– Training records –– Record retention policies Strong Clery policies, procedures, and the operationalization will go a long way! 3. The Cost of Doing it Right • Negative PR for Timely Warnings • Crime is UP (the need to be proactive and explain what the data means) University Park - Forcible Sex Offenses: 2010: 5 2011: 30 2012: 63 We have taken a proactive approach with the students, faculty/staff, and media about how to better interpret the data. It has been very helpful but certainly not fool proof. THE CLERY CENTER PROCEEDING IN PARTNERSHIP CONFERENCE LESSONS LEARNED FROM GOVERNMENT REVIEWS AND ASSESSMENTS: IMPLICATIONS FOR CLERY COMPLIANCE © 2013 Margolis Healy & Associates, LLC. All rights reserved. 8
  9. 9. Mobile App Solutions for Safe Campuses Margolis, Healy & Associates, LLC 445 Greystone Drive Richmond, Vermont 05477-7700 866.817.5817 (toll free & fax) Email: Twitter: @margolishealy FB: