Rescission of 2016 Clery Handbook: What Does It Mean for Colleges and Universities?

The U.S. Department of Education's Federal Student Aid Office (FSA) published an electronic announcement on Oct. 9, 2020, that it was rescinding the 2016 Handbook for Campus Safety and Security Reporting (2016 Clery Handbook) and publishing a new Clery-related Appendix of the FSA Handbook.

Given Title IX regulation changes that were effective August 2020 and the unprecedented challenges posed by the COVID-19 pandemic, weary college and university administrators are undoubtedly asking: What does this mean for us: 1) in the short term and 2) in the long term? Respectfully, the answers are: 1) it does not need to mean any more in the short term than you want it to and 2) administrators should wait and see what, if any, effect this rescission will have in the long term. This Holland & Knight alert explains below some highlights of the changes outlined in the Education Department's announcement, as well as thoughts on these questions.

Summary of Electronic Announcement

The electronic announcement begins by emphasizing that the 2016 Clery Handbook and previous Clery Handbooks created additional requirements and expanded the scope of the Clery Act statute and its regulations at 34 C.F.R. 668.41 and 34 C.F.R. 668.46. The announcement states that "[d]espite the fact that the guidance found in the 2016 edition did not have the force of law or regulations, some institutions may have felt pressured to satisfy the non-regulatory or non-statutory based aspects of the guidance, calculating that the financial and reputational consequences of non-compliance were too great." The announcement then cited an Executive Order issued by President Donald Trump and a U.S. Senate Report that criticized "non-binding" sub-regulatory guidance documents, cited Education Secretary Betsy DeVos' "commitment to reducing the regulatory burden on institutions," and described the Education Department's "holistic process of eliminating guidance that extended beyond [the Clery Act's] statutory and regulatory requirements."

The result of this process was a complete rescission of the 2016 Clery Handbook and its replacement with a dramatically condensed Appendix to the FSA Handbook.

Highlights of "significant changes" resulting from this action, as summarized by the Department in the electronic announcement, include:

Clery Geography

The electronic announcement states that "[w]hile Chapter 2 of the 2016 [Clery Handbook] attempts to clarify some of the details [of the definition of Clery geography], it may have expanded the definition beyond the intent and authority of the legislation and resulted in confusion and unhelpful over-reporting." The new FSA Handbook Appendix therefore "applies the specific regulatory requirements and attempts to provide clarity, without additional requirements, to terms defined in 34 CFR 668.46(a)." As an example of this revised approach, the Department will no longer apply the 2016 Clery Handbook's statement that "it is reasonable to consider locations within one mile of your campus border to be reasonably contiguous with your campus." The new Appendix also eliminates explanations of the definition of "public property" in the 2016 Clery Handbook that the Department viewed as beyond the statutory and regulatory definition.

Helpfully, the new Appendix also addresses issues identified in the Senate Report referenced above regarding institution-sponsored, stay-away trips and similar mandates placed upon trips to international destinations that required the collection of crime statistics from foreign law enforcement agencies.

Clery Crimes

The new Appendix deletes all definitions for Clery crimes from Chapter 3 of the 2016 Clery Handbook and replaces them with references to the precise regulatory-defined sources, on the rationale that the "explanations, summaries, and examples provided [in the 2016 Clery Handbook] may have, at times, created misperceptions and confusion for institutions attempting to properly interpret and apply the definitions."

Campus Security Authorities

The electronic announcement states that the "Appendix will strictly adhere to the definition of campus security authority (CSA) and will respect institutions' discretion in their reasonable determinations of who constitutes a CSA." This approach rejects what the Department views as the 2016 Clery Handbook's expansion of "the definition of a CSA to include individuals on campus that should likely not be designated so under a strict interpretation of the regulatory framework" because the 2016 Clery Handbook's "expansive view of the phrase 'significant responsibility for student and campus activities' ... captured groups of individuals who did not have 'significant responsibility.' "

Having highlighted these changes, the electronic announcement also stated, however, that while "this rescission will inform the Department's views moving forward, the rescission will not retroactively apply to previous Department determinations regarding Clery Act violations, fines, enforcement actions, or any other related actions by the Department," and while the Department will not advise institutions to rely upon the 2016 Clery Handbook, that Handbook "will be archived on the Department's website, but, where appropriately applied to prior calendar years, will continue to be referenced in program review reports, final program review determinations, and final audit determinations."

The electronic announcement noted in closing that no changes in the Appendix impact the July 10, 2020, temporary extension (to Dec. 31, 2020) that the Department provided regarding Clery reporting due to COVID-19.

So What Does It Mean for You?

To return to the questions posed at the beginning of this alert: What does this mean to college and university professionals responsible for Clery compliance: 1) in the short term and 2) in the long term?

Short-Term Ramifications

In the short term, this development need not mean any more than you want it to. There are some college and university administrators who prepared their soon-to-be-published annual security reports (ASRs) with ease and who are steeped so thoroughly in Clery compliance culture that they may view the elimination of the 2016 Clery Handbook's "one mile guideline," its examples and glosses on regulatory definitions, and its expansive, non-deferential view of the CSA definition as welcome changes. Such professionals can take steps to consider how such changes could affect their Clery compliance efforts in the future (with the qualification noted below).

On the other hand, there are some administrators who are still working to finalize this year's ASR and whose first reaction to the electronic announcement was "Oh no, how am I going to deal with yet another change in Department guidance?" To the latter group, do not panic. In the short term, the rescission of the 2016 Clery Handbook should have no effect on the substance of this year's ASR or on your institution's classification and reporting of statistics from prior years based in good faith on the 2016 Clery Handbook's definitions, examples and guidance. Between now and the ASR publication date of Dec. 31, 2020, the electronic announcement does not need to mean anything to you, unless you wish to consider its potential ramifications in more detail.

Long-Term Ramifications

To be direct, the long-term ramifications of the electronic announcement will likely depend on the outcome of the 2020 presidential election. As noted above, the Education Department's rationale for the rescission of the 2016 Clery Handbook was grounded in the Trump Administration's antipathy toward sub-regulatory guidance issued by the Obama Administration (similarly evidenced in the Department's September 2017 withdrawal of the 2011 Title IX Dear Colleague Letter on sexual violence and its simultaneous announcement of the formal rulemaking process that resulted in the August 2020 Title IX regulations), as well as a related Executive Order issued by President Trump. It is fair to say that a different administration may have a different view on the value of sub-regulatory guidance in general, and on the value of some of the concepts outlined in the 2016 Clery Handbook in particular. If the administration that rescinded the 2016 Clery Handbook controls how the Clery Act is enforced for the next four years, then colleges and universities should become well versed in how their Clery compliance practices can be adapted optimally to that reality. On the other hand, if a different administration controls the enforcement of the law, institutions should maintain a steady course and wait to see whether some of the guidance found in the 2016 Clery Handbook is reinstated through guidance, regulatory or statutory changes.

Conclusion

In sum, then, college and university administrators and their counsel should all plan to engage in a robust conversation in January 2021 about the direction in which Clery Act guidance and enforcement is likely to go given the prevailing administrative landscape. Until then, work on this year's ASRs should be completed without being distracted by the October 2020 electronic announcement, and administrators should continue the practical, crucial work they perform to promote safety for our campus communities.

Information contained in this alert is for the general education and knowledge of our readers. It is not designed to be, and should not be used as, the sole source of information when analyzing and resolving a legal problem. Moreover, the laws of each jurisdiction are different and are constantly changing. If you have specific questions regarding a particular fact situation, we urge you to consult competent legal counsel.