Why Penn State’s (many) problems may include a Clery Act crime reporting violation

To the extent that it is understood at all, the Jeanne Clery Act is known as the federal law that requires college police to tally and disclose reported crimes on their campuses.

So it may seen anomalous that a crime not reported to police at all — the alleged sexual assault of a 10-year-old boy in the football team showers at Penn State — might be the basis of a Clery Act violation.

To understand why requires understanding the scope of a university’s disclosure obligations under Clery — which, it seems increasingly clear, many colleges and universities thsmselves either fail to understand or affirmatively ignore.

The U.S. Department of Education is looking into whether Penn State violated federal law by failing to publicly log the March 2002 report that former assistant coach Jerry Sandusky was seen sexually assualting a child on campus.

The Clery law requires that colleges make publicly available an up-to-date log of every reported crime on campus, including its disposition. It also requires that serious crimes, including sexual assaults, be counted and disclosed in an annual statistical summary.

It does not appear that Penn State did either in the case of the shower-room rape that a former Penn State graduate assistant has testified to witnessing. Had an offense of such severity appeared on the daily crime blotter, it undoubtedly would have prompted a bombardment of media inquiries.

According to a Pennsylvania grand jury’s report, the 2002 assault was brought to the immediate attention of, at least, the university’s athletic director and its senior vice president for business and finance (both of whom are now facing criminal charges that they lied to investigators), as well as to fired head football coach Joe Paterno. There is no indication that any of them contemporaneously told campus or city police.

A university that breaches its Clery Act reporting duties is subject to six-figure fines. The largest in history was $357,000 levied on Eastern Michigan University for affirmatively concealing the December 2006 murder of a student in her dorm room.

It is widely — and incorrectly — believed that crimes do not “count” for Clery Act purposes unless police get involved. In fact, federal regulations provide that a crime must be tallied in year-end statistics so long as it is reported to any “campus security authority,” and that definition is exceptionally broad. It includes:

  • Anyone with “responsibility for campus security” who is not a police officer, such as the operator of the security gate at the campus entryway.
  • Any person or agency to whom students are told they can report crimes in the institution’s own “statement of campus security policy” (and this “statement” is a public document that any university must disclose on request).
  • “An official of an institution who has significant responsibility for student and campus activities, including, but not limited to, student housing, student discipline, and campus judicial proceedings.”

To be clear, even if a crime is handled through the campus disciplinary board rather than through criminal channels, its existence cannot be withheld from end-of-the-year Clery statistics. Because the objective of many campus disciplinary bodies is to avoid involving police and creating a public record that may damage a student’s reputation, crimes processed as disciplinary violations often evade proper counting and reporting.

The Department of Education has published guidance elaborating on the regulations and explaining that the obligation to create a Clery log entry applies to anyone — even a student employee such as a resident assistant — who is given “significant responsibility” for student activities:

For example, a dean of students who oversees student housing, a student center or student extracurricular activities has significant responsibility for student and campus activities. Similarly, a director of athletics, a team coach and a faculty advisor to a student group also have significant responsibility for these activities.

(emphasis supplied)

It is thus clear that both former coach Paterno and former athletic director Tim Curley were under a duty to make sure that the reported sexual assault got properly counted in Penn State’s 2002 annual crime statistics.

It is less clear whether Penn State was required to include the reported crime in the daily logs available for public inspection at the University Police Department. Unlike the annual statistical reports, the crime logs need capture only those crimes made known to law enforcement or public safety officers, not to the broader universe of “campus security authorities.” So a crime reported to the athletic director must appear in the annual statistical total, but need not necessarily show up on the police blotter.

Nevertheless, the situation is muddied by the fact that Gary Schultz, the indicted former PSU vice president, had supervisory authority over campus police. A report made to Schultz could, depending on the Education Department’s interpretation, be considered a report to campus law enforcement personnel. And if so, then Schultz was obligated to make sure that the crime appeared on the publicly available crime log. Even before police investigated and verified its existence. Or even if they never did.

Questions about the adequacy of Penn State’s reporting system should prompt a Clery Act “compliance audit” at every university this fall. Journalists should be asking to see whether their local university has a protocol for which employees beyond the police department are required to ensure that crimes get properly counted, and exactly how they go about doing that. It would be unsurprising to learn that coaches and athletic directors are unaware that the DOE considers them “mandatory reporters” if they learn of an on-campus offense.

Journalists also should be asking the campus disciplinary authority, such as the student conduct board, for its statistics on how many reports of particular categories of crimes were received and how they were disposed of — and then compare those figures against the annual Clery crime report. If the student conduct board acknowledges dealing with five sexual assaults and the institution’s Clery statistics show zero, then the reporting system is broken, and the breakdown should be brought to the attention of the DOE.