Clery Fines: Proposed vs. Actual

July 17, 2014

WASHINGTON -- Since the U.S. Department of Education in 2010 formed a specialized unit to enforce the federal campus safety law known as the Clery Act, an increasing number of colleges have faced fines for violating it.  

Department officials over the past four years have finalized the penalties against 15 institutions, compared with the six total fines doled out during the previous decade. Many more cases are currently making their way through the process, and the department plans to double, over the next few years, the number of regulators dedicated to Clery Act enforcement.

In spite of that increased scrutiny, colleges facing penalties have continued to be successful in getting their Clery Act fines reduced, according to data provided by the Education Department.

Far more often than not, colleges are able to either persuade officials to lower the fines or enter into a settlement through which they pay a lower amount than the department had originally proposed. Of the 21 Clery Act fines that have actually been imposed on colleges since 2000, 17 have been lower than the department initially proposed, the agency’s data show.

Among those institutions successful in winning a discount on their fines, the average reduction was more than 25 percent and usually represented tens of thousands of dollars. The largest discount, proportionally speaking, was a $110,000 fine that the department proposed against Pittsburgh Technical Institute in 2005; the for-profit institution based in Oakdale, Pa., was ultimately fined half that amount, $55,000, in 2007.

Violations for which a college may be penalized under the Clery Act include inaccurately reporting crimes that occur on campus, not having sufficient procedures in place to handle sexual assault, and not providing timely warning to the campuses community of an ongoing threat to public safety. 

The fine amount originally proposed by the department has become the actual fine imposed on an institution in only four Clery Act cases so far -- at Miami University of Ohio in 2005; Washington State University in 2001; the University of Northern Iowa in 2013; and the University of North Dakota, also in 2013.

The Clery Act, first enacted in 1990, requires colleges to report crimes that happen on or near their campuses and to warn students and employees about ongoing threats to public safety.

Congress last year expanded the law to include new categories of crimes that must be reported and to mandate training and prevention programs. The Education Department is in the process of finalizing rules to carry out those changes.

The Education Department previously delegated enforcement of campus safety rules to its eight regional offices. But in 2010, the department formed a special compliance unit in the Office of Federal Student Aid and dedicated six full-time regulators to the task. The team now employs 13 full-time Clery Act specialists, and the agency’s staffing plans call for 26 by the 2016 fiscal year, officials said.

Clery Act fines follow the same process as any other penalty that the department may impose on colleges participating in federal student aid programs, Federal Student Aid officials said. Colleges have an opportunity to appeal both formally and informally to the department, in addition to making their case to an administrative judge, before the education secretary makes a final decision.

But in many cases that process can be lengthy and span multiple years.

One high-profile case of Clery Act fine reduction played out over the last seven years at Virginia Tech. In the wake of the April 16, 2007, massacre on that campus that left 32 people dead, the Education Department found that university officials had violated the Clery Act by being too slow to inform the campus community that a gunman was on the loose. Virginia Tech vigorously objected to the department’s finding and its proposed $55,000 fine; the university ultimately settled with the department and paid $32,500 earlier this year.

Olabisi L. Okubadejo, a lawyer at Ballard Spahr LLP who has represented colleges fighting proposed Clery Act fines, said that most colleges appeal the decision “as any reasonable person would if someone were trying to fine them tens of thousands of dollars.”

Institutions often make the case to the department that the behavior or policies that the department was seeking to change with the fine have already been changed, she said.

In other cases, she said, colleges have successfully argued the technicalities or merits of the violation.

“Sometimes it’s as simple as saying, 'You’re misreading our map here, and that incident didn’t occur on campus property,' ” she said.

S. Daniel Carter, a prominent campus safety advocate, said that he was not too concerned about the reduction in Clery Act fines. He likened the department’s negotiations with colleges to plea bargaining in the criminal justice system, and noted that it’s often in both sides’ interest to settle for a lower fine instead of drawing out a lengthy process even further.

“The current fine structure is resulting in institutions being held accountable and taking corrective action,” said Carter, who directs the 32 National Campus Safety Initiative at the VTV Family Outreach Foundation. “The larger challenge is always the odds of an institutions being held accountable rather than the amount of the penalty they are held accountable.”

Carter said a more pressing issue was to increase the transparency in how the department investigates colleges for Clery Act violations, such as disclosing the list of institutions under investigation for possible violations like the department now does for sexual assault investigations under Title IX of the Education Amendments of 1972, which governs gender bias.

Still, others have said that the current fine structure and process need to be changed.

For instance, the Clery Act data provided to Inside Higher Ed by the department were originally compiled to respond to an information request by Senator Claire McCaskill, the Missouri Democrat who has said she’d like to see changes in the structure of penalties for colleges violating campus safety and antidiscrimination laws.

McCaskill, who is drafting legislation aimed at reducing campus sexual assaults, has said she’s eyeing stiffer penalties on colleges that mishandle those cases under the Clery Act and Title IX. That bill is expected to be released after Congress returns from its August recess. 

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