Friday, August 12, 2022

How the pandemic caused a university-focused crime reporting law to take on new meaning

The Clery Act has required universities to generate public reports of certain crime and safety statistics since 1990. Like many other traditions, its interpretation has evolved to accommodate the spread of the pandemic. (Port City Daily/File)

WILMINGTON—In March, university leaders nationwide first caught wind that the novel coronavirus pandemic would thrust profound consequences onto the status quo of college campuses for the foreseeable future. They had to adjust on the fly, realizing the new reality of college life now included contending with an infectious virus that would surge across the nation. 

One area of concern was the need to harmonize the disclosure of local campus outbreaks with the longstanding requirements of the Jeanne Clery Disclosure of Campus Security Policy and Crime Statistics Act of 1990. 

Since the onset of the pandemic, the U.S. Department of Education has issued only one formal guidance on how universities should incorporate the public disclosure of local Covid-19 spread into existing federal guidelines. The department’s stance has resulted in universities themselves being responsible for many details in the dissemination of pandemic-related messaging.

The Clery Act, as it’s known, was named for Jeanne Clery, a student at Lehigh University who was raped and murdered in her dorm room by another Lehigh student. Her death drew attention to crimes at college campuses that were going unreported; the law bearing Clery’s name requires universities to publish an annual security report that bears certain crime statistics, to maintain a public crime log, and to issue timely warnings to the community in situations where a criminal act represents a threat to students or employees.

The Clery Act also requires universities to issue emergency notifications in situations where “immediate threats to health and safety” are identified. This realm of the law, broadly speaking, has been bolstered in interpretation to include updates on Covid-19, according to Abigail Boyer, the associate executive director of the Clery Center, a national nonprofit that helps universities across the country comply with the Clery Act and its demands. 

“There really hasn’t been any updated guidance from the department of education, at least in relation to emergency notification in relation to Covid-19,” Boyer said. “It’s rare where we have a situation that the emergency is impacting every single campus at the same time, even though that impact is going to look different from campus to campus.” 

In early April, the U.S. Department of Education issued public guidance on how it expected universities to report Covid-19 outbreaks and data in relation to the Clery Act’s requirements. Guidance on proper methods of reporting Covid-19 cases in campus environments has not been updated since that initial announcement. 

“The Department does not interpret the statutory language as requiring institutions to give regular, on-going updates on COVID-19 or to proactively identify positive COVID-19 cases within the campus community,” the department’s guidance noted. “The Department also does not interpret the statutory language to apply to positive COVID-19 cases among individuals who are not attending classes, working, or residing on campus or to require notifications to such individuals.”

The department of education guidance continued to say universities could satisfy the emergency notification requirements of the Clery Act by doing one of two things: either providing the community with a single emergency message, through its regular communication channels that recognized the need for precautions in the face of the virus, or  “create a banner at the top of the institution’s homepage containing that same information,” which should link to the CDC. 

“We thought there would be potentially some more language that came out with the fall, since most people just kind of pivoted online and de-densified campuses, but they did not,” said Amber Resetar, the director for Title IX and Clery Compliance at the University of North Carolina at Wilmington.

The department of education’s lack of updates to its guidance on Covid-19 disclosure requirements — and a simultaneous push to rescind a handbook that laid out, in extensive detail, additional guidance on how to react to certain scenarios broadly relevant to the Clery Act — has put the onus on individual universities to create a system for disclosing Covid-19-related incidents that gels with federal law and existing policies of a given university. 

“These changes primarily impact Clery Act geography and campus security authorities, providing less direction on how institutions should interpret the regulatory requirements related to public property and noncampus geography as well as who is required to report under the Clery Act,” the Clery Center wrote in an online post.

Resetar said the deletion of the handbook was accompanied by the addition of an appendix to the Federal Student Aid handbook that focuses on Clery.

“It encourages common sense interpretation of the language,” Resetar said of the new appendix. “But the handbook used to have a lot of different examples of things that gave you a practical application.”

She said the handbook’s replacement is indicative of a recent trend within the federal government, which has been applied to Title IX guidance as well, to slim down guidance language in favor of more purely regulatory language.

“This administration has indicated they want to get away from guidance documents, and I think they saw this handbook as a guidance document only, and I think they’re trying to pare it back down to the regulatory language,” Resetar said, adding that she expected the administration to supplement its guidance at some point. “We’re kind of in a limbo period until then.”

Similarly to other universities in the 16-school University of North Carolina System, UNCW discloses Covid-19 “clusters,” which are defined by the N.C. Department of Health and Human Services as groups of five or more cases of the virus that are linked in proximity and time. These messages go beyond what the department of education demands of universities, but are in line with policies that have been adopted nationwide. UNCW utilizes email, text messages and social media to disseminate the messages. 

Since August, UNCW has publicly disclosed at least 11 clusters of Covid-19, which stemmed largely from residence halls and, in a few cases, athletic programs. 

“Once you check that initial box, anything you’re sending after that is an update as opposed to a true emergency notification,” Resetar said. “There is a much different requirement in terms of timeliness and all of those components.”

While UNCW has continued to utilize a wide array of outreach methods in these disclosures, internal emails obtained by Port City Daily through a public records request show that on multiple occasions university leaders pondered the idea of restricting the communication channels — specifically, mulling over whether or not to continue text message alerts. At the time of UNCW’s most recent cluster announcements, a university spokesperson said text messages are still employed, in addition to the other modes of outreach.

Chapel Hill sets a precedent

Re_ [FORMAL NOTICE] Updates… by preston lennon

One conversation in late August was prompted by an email from Ed Purchase, the Clery Act training coordinator for the UNC System. He wrote to a number of university officials across the state that UNC-Chapel Hill, the system’s flagship institution, had recently made the decision to suspend the use of its emergency notification software, “Alert Carolina,” in disclosing Covid-19 outbreaks on campus. Future Covid-19 announcements would be shared on university webpages and social media channels, UNC announced.

RELATED: Emails show how UNCW leaders confronted pandemic challenges in semester’s pivotal early weeks 

“This change in our communications in no way diminishes the University’s sense of urgency in ensuring that this information is shared in a timely, transparent and accessible fashion,” UNC wrote in a public announcement.

Purchase, who oversees Clery Compliance for the 16 public universities in the state, forwarded UNC’s announcement to officials at other schools, telling them, “I’m sharing it with you in the hopes it may assist you/your campus come to a similar decision.” 

“Keeping in mind UNC Chapel Hill’s unique standing with [the U. S. Department of Education] at this time, it is a safe assumption that any foot-forward decision related to Clery has been vetted internally and externally and should be considered safely compliant.” 

Purchase was likely alluding to a long-spanning review of UNC’s compliance with the Clery Act that began in 2013, which found the university in violation of a wide-ranging list of provisions. In the time after the report detailing the specifics of UNC’s situation became public in 2019, the university stayed in touch with department of education officials, and engaged an outside consulting firm to bolster its ability to “more fully comply with federal crime reporting and fire safety rules with improved policies and procedures that better incorporate national best practices,” according to an announcement from UNC Chancellor Kevin Guskiewicz. 

In response to Purchase’s email, UNCW’s interim chief communications officer Andrea Weaver said she was “open to a conversation whenever we want to have it.” After David Donaldson, UNCW’s chief of police, inquired whether or not UNCW was moving away from using text messages and emails as a means of disclosing virus clusters, Resetar wrote that, in concurrence with the university’s general counsel, she was not comfortable with eliminating text message outreach at that time. Though she noted if the university “de-densified,” as it later did, they potentially could reconsider the matter then. 

The department of education did not immediately respond to an email asking for clarification on its policies relating to Covid-19 and the Clery Act. A spokesperson for the UNC System said decisions on the manner of reporting campus outbreaks are largely left in the hands of individual universities, rather than resulting from a centralized policy; because every campus is different and has different needs, the spokesperson said. 

“I think we did go back and forth with talking about potential alternative methods, because of the fact that the department of ed said, like, ‘You don’t need to hold yourself to this standard,’” Resetar said. 

She added that one proposal tossed around had involved rerouting the cluster alerts to solely social media channels. 

“We have a pretty good following; our students regularly check social media,” she said. “So that’s something that’s pretty accessible to them. But we also have a staff of people in facilities or housekeeping that may not be able to access their social media during their shifts, for example.” 

In Purchase’s email, he called the department of education’s decision to not release additional Covid-19 disclosure guidance “not-so-thrilling news.” 

Resetar said the department of education’s additional decision to rescind the Clery handbook, which for the past four years had offered general advice on a sprawling list of specific scenarios, represented the desire of the current administration — helmed by President Donald Trump-appointee Betsy DeVos — to pare down documents, including those related to Clery and Title IX, to purely regulatory language. Even still, her goal is to ensure that UNCW makes the community aware of immediate threats to public safety, and that disclosures are widely read by those affected.

“This is a whole different ball game with this pandemic, and people are being sort of peppered with information at all kinds of different angles,” Resetar said. “That is what I think has presented maybe the biggest challenge, is that there’s external messaging that sometimes can feel like it’s just overwhelming anything we’re trying to do internally.”


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