U.S. Department of Education guidance specifies that this is a firm deadline; there is no grace period and no exemptions exist.

The Jeanne Clery Disclosure of Campus Security Policy and Campus Crime Statistics Act, or Clery Act, 20 U.S.C. § 1092(f) (34 C.F.R. § 668.46), requires all schools, colleges and universities that participate in federal student financial aid programs to:

1. Maintain and disclose to the public statistics, policies and programs about certain crimes occurring on and/or near a campus; and
2. Have in place and be able to demonstrate implementation of specific campus safety policies, including those related to crimes of sexual violence.

Educational institutions must provide and distribute this information in a Clery Act Annual Security Report (ASR) by October 1, 2019. The U.S. Department of Education guidance specifies that this is a firm deadline; there is no grace period and no exemptions exist.

ASR requirements include:

• Policy Statements. Institutions are required to include the procedures, practices and programs used to keep students and employees safe and the facilities secured. Institutions should review the content of the ASR to ensure that required policy statements comply with the law and that staff members understand how those policies are implemented.
• Clery Act Crime Statistics. The ASR must include Clery Act statistics for the prior three calendar years. For the 2019 ASR report, this includes calendar years 2016, 2017 and 2018 crime statistics and the sexual violence and other campus safety policies required by the Clery Act. All statistics, other than hate crimes and unfounded crimes, should be presented in a tabular form.
• VAWA State Law Definitions. The ASR must include definitions of consent, sexual assault, domestic violence, dating violence and stalking under the state law where the institution is located.
• Campus Housing. Institutions with on-campus student housing facilities must include an additional policy statement that addresses missing student notification. In addition, institutions with on-campus student housing facilities must publish an annual fire safety report, which may be included in the Clery Act ASR, provided that the title of the document clearly states the inclusion of both reports.
• Publication and Distribution. Properly publish and distribute the report as required. Institutions must disseminate the ASR to all currently enrolled students and all employees by October 1, 2019. There are specific requirements related to how that report is distributed, as well as how schools must evidence distribution. They also are required to provide the report to any prospective student or prospective employee upon request. Institutions should maintain evidence that such distribution occurred.
• Record Retention. Retain records associated with the report. All supporting records must be maintained for three years from the latest publication to which they apply. For example, the 2016 statistic and supporting records must be kept until at least October 1, 2022, as they are contained in the 2018 ASR published on October 1, 2019 (which contains 2016, 2017 and 2018 calendar year statistics).
• Crime Reporting. Submit crime statistics to the Department. While institutions are not required to submit their ASR directly to the Department, they must submit the crime statistics from the report to the Department via the annual Campus Safety and Security Survey (CSSS).
• Emergency Response. The Clery Act requires every Title IV institution, without exception, to have and disclose emergency response and evacuation procedures that would be used in response to a significant emergency or dangerous situation involving an immediate threat to the health or safety of students or employees occurring on the campus, including an active shooter situation. Schools are reminded that they must have an emergency plan, test it, evaluate it and publicize it.

Please note that in addition to producing the ASR, institutions must also provide the data to the Department in the CSSS. The Department has contracted Westat to ensure the CSSS data is collected. As stated on the Department’s website, the 2019 CSSS Data Collection application opens on August 21, 2019, and closes on October 16, 2019.

The Department enforces the Clery Act through student financial aid program reviews, both general reviews and targeted Clery Act compliance reviews. The Department is authorized to impose fines, limitations, suspension or termination actions—including heightened cash monitoring or provisional status—for Clery Act violations. The Department continues to view Clery Act compliance as a priority and generally issues fines, increased for inflation, of up to $57,317 per violation. Clery Act compliance is also evaluated during required annual Title IV compliance audits. Educational institutions that participate in federal financial aid should prepare now to meet the Clery Act reporting and distribution requirements to minimize the risk of costly fines and other Department actions or audit findings.

For Further Information

If you have any questions about Clery Act compliance requirements, please contact any of the attorneys in the Higher Education Practice Group or the attorney in the firm with whom you are regularly in contact.

Disclaimer: This Alert has been prepared and published for informational purposes only and is not offered, nor should be construed, as legal advice. For more information, please see the firm's full disclaimer.