COMPLIANCE WITH THE "TIMELY NOTICE" PROVISIONS OF THE CRIME AWARENESS AND CAMPUS SECURITY ACT OF 1990

Since September 1, 1991 all institutions of higher learning havebeen required to comply with the "Timely Notice" provisions of this federal law, herein referred to as the Act.

The previously established and comprehensive "Police File," a cooperative effort of James Madison University's Campus Police and JMU's twice weekly "Breeze" does not meet the spirit of "timely notice" as relates to the law. Other mechanisms have been developed through cooperative efforts of the Campus Police, and the offices of Residence Life, Media Services, Academic Computing, and the Center for Off-Campus Living.

These include controlled utilization of the Campus Police Web site http://www.jmu.edu/pubsafety/index.shtml, Academic Computing's electronic bulletin board, distribution of posted bulletins in Residence Life facilities and the Center for Off-Campus Living office, and contact with the Media Relations Director. Any occurrence or series of occurrences being any one of the Part I Crimes [murder, rape, robbery, aggravated assault, burglary, motor vehicle theft, arson (plus larceny in Virginia)] required to be disclosed in the Annual Report "considered to be a threat to other students and employees" should be reported to the community in a "timely" fashion.

The Director of Public Safety, the Chief of Campus Police, or in their absence, other university officials in a position of authority will initiate action for a "timely notice" to the community once it has been determined that a "threat" to the community exists. This can occur any day of the week, time of the day. The designated official(s) will draft the appropriate notice to the community and see to it that it be posted through distribution to:

1. Designated Residence Life officials or staff.
2. Center for Off-Campus Living staff.
3. Media Relations Director.
4. Electronic Bulletin Board, "Crime" category.
5. The "Breeze" Police Reporter or News Editor.

The Background Kit...Strategies for Compliance,1 drafted by Doug Tuttle and published by the International Association of Campus Law Enforcement Administrators (IACLEA) points out that "the 'duty' of an institution to warn of possible 'dangerous conditions' on its property has been recognized in several (civil law) cases, in this instance an affirmative duty to warn of possible peril at the hands of some third party has been incorporated in a (federal) statute."

"On one hand, the duty to provide 'timely reports' is applied only to occurrences of the six (eight in Virginia) Part 1 crimes which are required to be disclosed in the Annual Report, and then only in circumstances where they are 'considered to be a threat to other students and employees.' On the other hand, any of those...defined offenses which are reported to the 'local police agencies' anywhere within the law's expanded definition of the 'campus' are subject to the requirement of timely reports. The critical factor here, once again, is that the institution has knowledge of the incidents. As stated previously, the reporting relationship with the local police department(s) concerning these off campus areas must be clearly articulated."

"Strategies for complying with the 'timely notice' provision of the Act should be carefully reviewed by counsel. Even if an institution should decide to publish notice of the specified offenses in every issue of the campus newspaper, there must be an allowance for objective judgement on the part of the campus security or police administrator to determine which incidents reasonably pose a foreseeable threat to the safety of other students or employees and which incidents do not. An aggravated assault which is in reality an incident of 'domestic violence'... probably would not be considered a threat to others. On the other hand, if a strong arm robbery were committed immediately across the street from campus, or a burglary/rape occurred in a nearby apartment building known to house significant numbers of students, (the question is posed) would it not be reasonable to expect that those incidents would be afforded the same manner of 'timely reporting' as if they had occurred on the campus of the institution?"

To re-enforce this interpretation, I submit for you review a short news piece from a recent issue of THE CHRONICLE of Higher Education, entitled: "Jury awards $1.6-million to student raped at USC."2

"LOS ANGELES--A jury last week ordered the University of Southern California to pay over $1.6-million in compensatory damages to a female former student who was raped four years ago outside an off-campus residence hall.

The Superior Court jury found that the university had provided inadequate security and insufficient information about the area's high rate of crime, the student's lawyer...said.

The jury still may require USC to pay punitive damages, too."

DEFINITION OF "CAMPUS SECURITY AUTHORITIES" AS RELATES TO THE STATISTICAL REPORTING REQUIREMENTS FOR COMPLIANCE WITH THE CRIME AWARENESS AND CAMPUS SECURITY ACT OF 1990

Though the "proposed rules" promulgated to support compliance with and enforcement of the Act have yet to be issued, it is anticipated that the Department of Education's (DOE) definition of just who will constitute a "campus security official" for the purposes of the Act will be broad.

This will be of concern to both traditional police/security practitioners and school counselors. The provision relates to both statistical and timely reporting of the six (eight in Virginia) Part I crimes specified by the Act. Source information comes from both the "Dear Colleague" letter transmitted to college and university presidents in September of 1991 and clarifying comments made recently by DOE's Paula Husselmann in response to questions posed by Doug Tuttle, Director, Region 3, IACLEA.

"Section 204 of the Act also requires an institution to make timely reports to the campus community on the following crimes 'reported to campus security authorities or local police agencies' that are considered to be a threat to other students and employees: murder, rape, robbery, aggravated assault, burglary and motor vehicle theft. Institutions should recognize that the term 'campus security authorities' is broader than the term 'campus police force.' Specifically, the Department understands the term 'campus security authorities' to include (1) any individual or entity specified in an institution's statement of campus security policy as the individual or entity to whom students and others should report criminal offenses, as well as (2) administrative officials having primary responsibility for student and campus activities, such as STUDENT COUNSELORS, deans and campus residence directors. The institution must provide these reports in a manner that is timely and will aid in the prevention of similar crimes. The Secretary (of Education) recommends that the institution meet with the institution's security personnel, and local and State law enforcement authorities to discuss what is reasonable in terms of the timely reporting of these crimes."3

Doug Tuttle has been keeping members of Region 3, IACLEA current on the latest rule making and interpretations coming out of DOE through his bimonthly "Regional Newsletter." "Of even greater interest is the third paragraph on Page 10 of the 'Dear Colleague' letter which defines our Deans of Students, Counselors and Residence Hall Directors as 'campus security authorities.' As such, they are required to alert the 'campus community' of any reported on-campus incidents of murder, rape, robbery, aggravated assault, burglary, or motor vehicle theft' which may be 'considered to be a threat to other students and employees'. These 'timely notices' are to be disseminated in such as way as to 'aid in the prevention of similar occurrences'. (Tuttle has) a real concern about how this may impact upon 'confidential' reports to COUNSELORS (including the volunteer members of campus 'rape crisis units') as well as Student Affairs and Residence Life staff in cases where the victims do not wish to notify the local police or the campus law enforcement agency. We must recognize the right of crime victims to seek confidential counseling and emotional support services apart from any involvement in the criminal justice system if they so desire. The DOE's definition of 'campus security authorities' is excessively broad and will interfere with that right. (DOE's) position (as of 9/6/91) is that counselors CAN RELEASE 'crime statistics' WITHOUT VIOLATING THE CONFIDENTIALITY OF THE VICTIM OR THE ALLEGED PERPETRATOR..." 4

For those Student Affairs administrators and school counselors with heightened concerns over this perceived breach of confidentiality, there is some hope for revised thinking and interpretation by officials at DOE. In a later newsletter, Tuttle wrote: "It appears that our concerns with the impact on victims' rights of the overly broad definition of who is a 'campus security authority' will be reviewed. This is an area in which the Department of Education seems to have gone beyond the intent of the authors of the legislation."5

DOE was supposed to have issued its "notice of proposed rule making" (NPRM) "concerning the... Act" in late January. "Based upon conversations with staff members of the House Committee on Education & Labor and the DOE, it is (Tuttle's) understanding that there will be substantive changes from the language of the 'Dear Colleague' letter GEN-91-27 pertaining to the definition of 'campus security authorities' as well as the requirement to report campus crime statistics on the basis of the August 1 - July 31 time frame instead of the 'calendar year'..." 6

Doug Tuttle was a participant and guest speaker at the Region 3, IACLEA Winter Workshop hosted by the Virginia Association of Campus Law Enforcement Administrators early in March, 1992. He provided a two hour summary and update on the Act and the anticipated Campus Sexual Assault Victims' Bill of Rights amendment to the Higher Education Act.

Tuttle expressed frustration with DOE's delay in issuing their notice of proposed rulemaking (NPRM) as relates to the Act. He stated that the term "campus security authorities" was still being defined broadly to include Student Affairs administrators, Residence Life staff, and Counselors. He stated that he anticipated that the NPRM would be issued by the end of the month. He expressed confidence the a 'year' for the purposes of the Act would be defined as a "calendar year."

But in his most recent Newsletter, Tuttle wrote in his "Federal Legislative Update," "'It is anticipated that the U.S. Department of Education will issue a notice of proposed rulemaking (NPRM) concerning the Crime Awareness and Campus Security Act later this month.' If that sentence looks familiar, you must have read the January Newsletter! The DOE's 'official' publication schedule now has the NPRM slated for April, but a March publication date is 'hoped for'. Once the NPRM is published there will be a 45-day period for public comment, after which the cycle of internal reviews & approvals will be repeated prior to the publication of the Final Regulations. At this point the anticipated date for the Final Regulations is November, 1992."

Tuttle continued, "Of some concern is information which I received on January 30 that even though the NPRM will be published this spring, the proposed rules will not have the force of law. Until the Final Regulations are out, the requirements of the 'Dear Colleague Letter' will be the 'official' interpretation. This should prove to be interesting, as the changes to the definitions of 'campus security authority' and 'calendar year' for which we have lobbied would not become effective until after September 1, 1992 - the deadline by which the first Annual Report must be published and distributed! I will be attending a workshop of the National Association of College & University Attorneys (NACUA) on March 12 in Dallas where this topic will be discussed - stay tuned."7

Following his return from Dallas, Tuttle remained confident that the "calendar year" interpretation would stand. Due to the above uncertainties as well as the anticipated incorporation of the Campus Sexual Assault Victims' Bill of Rights into the Act, it is anticipated that complying institutions will be publishing a revised rather than asupplemented (by insert) compliance pamphlet during the summer of 1993.

On February 20, 1992, the U.S. Senate adopted an amendment (No. 1667) to the Senate bill re-authorizing the Higher Education Act. During the week of March 23rd, the House passed its version of the Act. This Act provides for the legislative entitlement of Pell Grants, Guaranteed Student Loans, Graduate Fellowships, Title II funds, and other financial aid programs. Senate and House versions are slated to go to conference soon.

Both versions would add a statement of policy concerning campus sexual assaults to the disclosure requirements of the Crime Awareness and Campus Security Act of 1990. The Campus Sexual Assault Victims' Bill of Rights as outlined in the Senate bill goes into greater detail than the House version. But, it is less burdensome than the legislation which was originally introduced by Congressman Ramstad of Minnesota.8

ADDENDUM JULY 23, 1992

Two items of note:

Finally the "Proposed Rules" for the "Student Right-to-Know and Campus Security Act" have been published and distributed, albeit several months late. Of significance is that counselors are not considered to be "campus security authorities" for the purposes of the act. But "deans and residence officers" continue to be included in the definition of "campus security authorities" along with the more traditionally considered campus police and security officers. 9

The president and congress are in agreement on the bill to reauthorize the Higher Education Act. Within the language are provisions relating to the "Campus Sex Crimes Victims' Bill of Rights."10

REFERENCES

1 BACKGROUND KIT, The Crime Awareness and Security Act of 1990: Strategies for Compliance, A guide for Security and Police Administrators, Tuttle, IACLEA, 1991, Pages 29 and 30.

2 THE CHRONICLE OF HIGHER EDUCATION, April 1, 1992, Volume XXXVIII, Number 30, Page A4, "In Brief."

3 Paragraph 3, Page 10, "Dear Colleague" letter GEN-91-27 sent to all college and university presidents, September 1991.

4 Page 2, International Association of Campus Law Enforcement Administrators (IACLEA) Regional Newsletter, Douglas F. Tuttle, Director, Region 3, September 1991.

5 Page 2, IACLEA Regional Newsletter, Tuttle, Region 3, Nov. '91.

6 Page 2, IACLEA Regional Newsletter, Tuttle, Region 3, Jan. '92.

7 Page 1, IACLEA Region 3 Newsletter, Tuttle, March 1992.

8 Sources for this information are Page 1 of the IACLEA Region 3 Newsletter, Tuttle, March 1992 and THE CHRONICLE of Higher Education, April 1, 1992, Volume XXXVIII, Number 30, Pages A1, A26, and A27.

9 Federal Register, Friday July 10, 1992, Part V, Dept. of Education, 34 CFR Part 668, Student Assistance Provisions; Proposed Rule, Page 30829, Section 668.48 Institutional Security Policies and Crime Statistics. The Chronicle of Higher Education, July 22, 1992, Vol. XXXVIII, No. 46, Pages A24-25.

10 The Chronicle of Higher Education, July 8, 1992, Vol. XXXVIII, No. 44, Pages A15 and A25.