Understanding the Clery Act and the FBI Fines against college who violate the act

1. The Campus Law Newsletter Spring 2013
U.S. Secretary of Education Reverses “Lenient” Fines for Clery Act Violations.
Reduced fines thrown out in favor of harsher remedies.
By Adam Lambert
Attorney at Law
If recent decisions are any indication, the Secretary of Education will continue to issue heavy fines against schools that fail to comply with the Clery Act’s reporting and notification standards. While heavy fines against Penn State and Virginia Tech were well-published, recent decisions against other schools for Clery Act violations also show a marked increase in the amounts of fines being levied by the Department of Education for violations of Clery’s reporting requirements.
Tarleton State Fined $137,500.00
Back in 2010, the Department of Education found that Tarleton State University (a Texas A&M school) failed to report three forced sex offenses on campus reported in 2009. The Department levied a $137,500.00 fine against the University for the Clery Act reporting violations. The University appealed the initial decision and argued that the omissions were not intentional and that the University took immediate corrective action. An Administrative Law Judge (“ALJ”) agreed and reduced the fine to $27,500.00, which is the punishment for a single Clery reporting failure.
Late in 2012, Arne Duncan, the Secretary of Education, overturned that decision, reinstating the original $137,500.00 fine and asking the Office of Federal Student Aid to add additional punishments for the rest of Tarleton State’s unreported incidents.
In reversing the fine reduction, the Secretary stated, “A single fine for issuing a crime report missing multiple crimes is tantamount to sending the message to postsecondary institutions throughout the nation that regardless of whether your crime report omits one crime or 101 crimes, the maximum fine is the same.”
The Secretary concluded, “Although I do not assume that postsecondary institutions desire to avoid the consequences of having to report a high incident of crime when required to do so, it is common sense that the calculation of such a fine carries less compulsion of compliance than the [higher] calculation required by this decision.”
Washington State Fined $82,500.00
Washington State University appealed a fine of $82,500.00 issued against it for a 2007 Clery Act reporting violation which included the failure of the University to report three Clery Crimes, including two forcible sex offenses. The ALJ in that case reduced the fine to just $15,000.00, based on the facts that (1) there was no evidence of fraudulent intent by the University in failing to report the crimes, (2) this was the University’s first violation, (3) the violations were corrected immediately, and (4) there were no federal funds placed in jeopardy as a result of the violations.
In a written decision handed down in late 2012, the Secretary overturned the reduced fine and again reinstated the harsher fine of $82,500.00. Citing her reasoning in the Tarleton case (discussed above), the Secretary held, “I summarily rejected the ALJ’s [fine reduction], noting that mitigation should not be applied in a manner that was inconsistent with the Clery Act’s goal of encouraging postsecondary institutions to provide reports of campus crimes to students, faculty, and staff, who, as a result, may use the crime reports to avoid becoming future victims of campus crime.”
Trend Continues
A review of these cases, as well as other cases handed down recently, shows that the Department of Education will continue to issue heavy fines for Clery Act violations and will continue to reject defenses based on things like “honest mistake”, “prompt corrective action”, “first ever violation”, or “no harm, no foul”. If these cases are any indication of things to come, schools that fail to comply with the Clery Act’s reporting requirements should get their checkbooks ready. 