It’s Time to Reform the Clery Act

Thirty years after passage of the landmark law, it has become a bureaucratic mess that can do little to improve campus safety, even during a pandemic, argues Edward Davis, former police commissioner of Boston.

May 15, 2020
 
 
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The coronavirus has hit our colleges and universities hard, with most institutions making the difficult decision to close their campuses and send students back to their families and local communities. As the severity of the virus has become clear, parents are rightfully scared for their children, and students are concerned about whether their friends and classmates may have been inadvertently spreading the virus.

The threat of the virus on our campuses underscores the importance of transparency, informing students and parents when a dangerous situation occurs on campus and what the institution is doing about it. That was the intent of the Clery Act when passed by Congress in 1990 -- to ensure that students and staff members were promptly notified in an emergency and that annual crime statistics were accurately reported.

But like many well-intentioned federal laws, the implementation of the Clery Act has become disconnected from its original design: the security of our college campuses. Its requirements for timely notification of safety threats have become confusing and muddled, and its overriding focus on lengthy annual statistical reports is taking resources away from the mission of campus safety.

When I served as police commissioner for the city of Boston, a city known as the education center of the country, I saw the enormous diversion of resources to meeting this mandate, including resources within my own department, as we had to train and staff police to assist campus authorities in their paperwork.

As we watch our health-care professionals respond to the COVID-19 pandemic, their priority is the treatment of the patients and the prevention of disease spread. At the same time, the search for effective treatments and a vaccine are accelerated. The statistical data about the impact of the disease, while useful, is simply one of many tools. It’s not an end in itself.

Whether and how a campus should notify its community of a threat, like a spreading virus, isn’t nearly as clear as one might think in the Clery regulations. The only guidance the federal government offers is that an “outbreak of illness” is an example of a “significant emergency or dangerous situation” requiring emergency notice to a campus. But that can mean many things. What if a resident in the surrounding area is diagnosed? What if a student has flu-like symptoms but hasn’t been tested?

It is also worthy of note, the U.S. Department of Education only last month issued its guidance on reporting of COVID-19. Far too little, and far too late.

Ideally, administrators should be able to rely on the informed judgment of professionals on the scene for these difficult decisions. However, the cost of doing what may seem like the right thing -- that later turns out to be judged by a bureaucrat in Washington as being a violation of the Clery Act -- can be enormous. The potential results include large fines, the transfer of highly trained policing resources to administrative tasks and, most important, misperceptions among students and parents about campus safety.

So rather than concentrating on the correct response to an emergency, campus professionals are forced to focus on whether the form of emergency notice will comply with the Department of Education subregulatory guidance -- and little to nothing in the actual regulations speaks to the form of proper notice.

Beyond the form of campus notification, the Clery Act’s greatest danger is the diversion of hundreds of millions of dollars of university resources away from campus safety to preparing lengthy annual statistical reports that few people read or understand.

Campus police chiefs report that the needless bookkeeping demands enormous time and funding that should be dedicated to making campuses safer for everyone. It’s hard to imagine that this was the intent of those who wrote the Clery Act 30 years ago.

The law requires colleges and universities to report crime statistics on an annual basis. What started as a report of 20 or so pages has evolved, as the bureaucracy has expanded, to typically more than 100 pages of dense statistical information. It requires vague data that are difficult for even an expert to comprehend. Worse, the report offers little perspective that would allow a reader to evaluate current safety concerns on campus.

Production of this annual report is a massive undertaking that pulls resources away from vital campus safety operations. And we all know that these compliance costs translate into increased tuition -- and a corresponding increase in student loan debt.

For example, institutions are forced to spend an enormous amount of time distinguishing between simple assault, which doesn’t need to be reported, and aggravated assault, which does. The Clery Act Handbook’s four pages devoted to figuring out which is which describe simple assault as, for example, a punch thrown in a fight. But if that punch results in an injury such as a lost tooth, it’s an aggravated assault. If a college gets it wrong, it faces fines and criticism from the Department of Education.

As is often the case with government mandates, what started as a well-intended law has become a monster as it has expanded to reflect theoretical concepts rather than operational realities. What should be technical statistical findings frequently drift into judgments about campus safety procedures and individual motives without a proper basis. The qualifications of the auditors making those judgments are unavailable to the public, a fact that should concern any institution being audited.

The Clery Act is enforced through Education Department audits. Violation findings are often accompanied by fines of up to $58,000 per infraction, yet the findings are not helpful in framing compliance solutions. The department takes years to issue audit reports, and by that time, institutions have already responded to threats and modified their prevention and compliance strategies. The intent of the law was to provide transparency -- not to require colleges and universities to jump through hoops or be subject to ill-informed and very harmful conclusions.

Keeping our campuses safe requires police using the newest training and technology. It demands close coordination between campus police and local police departments, which have specialized units and technologies beyond the reach of most college safety forces. It requires money, too. Money currently spent on cumbersome reports mandated by Washington bureaucrats could be redirected to the latest training and technology.

Most campuses are reasonably safe. But crime -- and now the coronavirus -- remains a challenge everywhere, and we must constantly rethink our strategies for dealing with it. That rethinking must also apply to a law like the Clery Act, which is important but has evolved into a bureaucratic morass.

We need to focus on information that is needed immediately -- like the threat of the coronavirus and what a college or university is doing to cope with it. Like all of us, students and their parents need the simple truth about how much of a threat is there and what is being done to mitigate it. Clear truth and calm answers build confidence. We are experiencing this threat in real time now, and we need to conform the Clery mandate to the lessons we are now learning.

Bio

Edward Davis is founder and CEO of the security firm Edward Davis Company. He previously served as commissioner of the Boston Police Department from 2006 through 2013, where he oversaw security operations for six world championship celebrations and the Occupy Boston movement and led the response to the Boston Marathon bombing. He has been a resident fellow at the Harvard University Kennedy School Institute of Politics and has lectured extensively at both Harvard and MIT on physical and cybersecurity, public safety, and emergency/crisis response.

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