Elizabeth J. Mooneyby Betsey Mooney
On Friday, October 9, 2020, the United States Department of Education announced the rescission and replacement of the 2016 Handbook for Campus Safety and Security Reporting (the “2016 Handbook”). In its announcement, the Department asserted the 2016 Handbook and its predecessors had improperly created additional requirements and expanded the scope of the Clery Act and its accompanying regulations, providing guidance that was “unnecessarily voluminous.” In response to these concerns, and in keeping with Executive Order 13891 (stating agency guidance documents should only be used to clarify existing obligations), the Department rescinded the 2016 Handbook in its entirety and replaced it with language in a new Appendix to the Federal Student Aid (FSA) Handbook. The primary changes to the guidance in the 2016 Handbook fall into three categories: determination of Clery geography, definitions of Clery crimes, and the identification of campus security authorities. In most cases, the new guidance provides less direction to institutions as to how to interpret the requirements of Clery.
With respect to Clery geography, the Department asserts that the 2016 Handbook’s attempt to clarify details actually “expanded the definition beyond the intent and authority of the legislation.” The new Appendix removes all definitions not found in the regulations or statute, and no longer applies any specific measurable distance definition to “reasonably contiguous” geographic area. Furthermore, the Appendix addresses issues associated with obtaining crime statistics related to institution-sponsored overnight or international trips, and omits the illustrations provided in the Handbook.
The Department also asserts the explanations, summaries, and examples of Clery crimes included in the 2016 Handbook were confusing and created misperceptions. Accordingly, the new Appendix omits all prior definitions for Clery crimes, and replaces them with references to the relevant regulatory defined sources at 34 CFR 668.46(c)(9) and Appendix A to subpart D of part 668.
The new Appendix adheres strictly to the definition of “campus security authority,” and states it will defer to institutions as to the determination of who qualifies for that designation. The Department claims the 2016 Handbook took an overly expansive view of the phrase “significant responsibility for student and campus activities” found in the regulations, resulting in confusion. Under the new guidance, the decision as to who qualifies as a campus security authority rests with each institution.
The Department noted the 2016 Handbook will be archived on its website, and will continue to be referenced in program review reports for applicable calendar years.
Higher Education – Tueth Keeney maintains one of the largest and most successful higher education law groups in the Midwest. Our higher education practice includes representation of numerous colleges and universities throughout Missouri and Illinois. In addition, the Firm is one of approximately twenty law firms in the nation that have been appointed to act as Select Counsel to represent higher education institutions insured by United Educators Insurance Risk Retention Group, Inc., the nation’s largest insurer of colleges and universities. The attorneys in the Firm’s higher education group provide a full range of services to colleges and universities, ranging from day-to-day counseling on legal issues, to representation in complex litigation.
Elizabeth J. Mooney practices primarily in the areas of education, non-profit, litigation, labor and employment law. Betsey represents school districts with respect to employment and termination matters, special education, wage-hour compliance, student discipline and student rights, civil rights, and church/state issues. Betsey has successfully represented school districts in student and employment matters before State and Federal Courts and administrative agencies, including the Equal Employment Opportunity Commission, Missouri Commission on Human Rights, and the United States Department of Education Office for Civil Rights. As the former Associate General Counsel for a large private university, Betsey has extensive experience advising higher education clients on a host of student affairs and campus security issues, including student privacy concerns, the Jeanne Clery Act, and the Higher Education Opportunity Act.