Higher Education Act Reauthorization Issue Brief
IACLEA urges Congress and the U.S. Department of Education to simplify federal statutes and regulations. The goal is to avoid duplication, confusion, and unnecessary expense in the federal reporting requirements for college and university public safety departments.
The six pages of federal law governing college and university campus public safety has been translated into more than 600 pages of regulations, sub-regulatory guidance, and a resource handbook for compliance by the U.S. Department of Education. Originally intended to simply inform prospective and current students and their families of campus crime statistics, the Act has evolved into an exercise of recordkeeping involving a multitude of incidents (many not even classified as crimes) within often ill-defined and unrecognizable boundaries which results in the potential for duplication and conflicting reporting requirements. Further, a required accounting of incidents that occur overseas and off-campus is not only impractical, but where reporting is possible, it can be costly and more importantly, can portray a misleading picture due to the irrelevancy of the required data.
Compliance with many of these regulations has not had the desired effect of either improving campus safety or providing students and parents with clear and concise information which would allow them to make informed decisions about a campus and their ability to stay safe. Rather, it requires institutions and campus law enforcement to spend valuable time and oftentimes limited resources in an effort to comply with what has proven to be a very time consuming requirement that in the end has very limited value to our constituencies. This has the direct effect in many cases of taking away valuable patrol and training time from those who could and should be available to students who need them.
Colleges and universities are incurring a real cost as a result of these regulations – equivalent to more than one officer on the beat. (Old Dominion University study, 2014)
IACLEA strongly supports the regulatory reform proposals contained in the report Recalibrating Regulation of Colleges and Universities, issued in 2015, by the Task Force on Federal Regulation of Higher Education.
The Task Force was formed by a bipartisan group of senators including Lamar Alexander (R-TN), Barbara Mikulski (D-MD), Michael Bennet (D-CO), and Richard Burr (R-NC), to address widespread concerns about provisions contained in laws and regulations and their impact on colleges and universities. The Task Force was comprised of 16 higher education leaders. IACLEA was involved in this effort, assisting the American Council on Education in the development of specific recommendations detailed within the report.
Reporting Requirements – IACLEA fully supports transparency in crime reporting on our campuses. However, existing regulations can require that one incident be reported multiple times and in different ways, resulting in confusion among those attempting to interpret and make sense of the numbers. Some regulations require reporting of “crimes” that are not defined as crimes in all states. In some cases, regulations do not define terms, nor are those terms defined in state law. And in some instances, federal definitions are at odds with state definitions.
The inconsistencies in definitions creates immense difficulties for campus law enforcement and creates tremendous inefficiencies and confusion rather than clarity and transparency. It creates needless, inefficient paperwork and an unnecessary expense to our educational institutions. This must be fixed.
Timely Warnings About Threats to Campuses – Campus law enforcement must have clear authority to use their own expert judgment to determine when a serious or continuing threat exists and when they have the appropriate information to issue a Timely Warning. The Department of Education, except in cases of clear negligence, should give deference to the judgment of the law enforcement professionals who implement these rules on campus day in and day out, and it should acknowledge actions taken in good faith by institutions to protect their campus communities by appropriately informing them of safety threats.
Non-campus Property – The definition of non-campus property should be clarified and narrowed to focus more directly on property that is a core part of a college or university. At a minimum, it should exclude all foreign locations as well as short stays in domestic hotels.
Regulations now require reporting of community crime near a facility where students may spend a short time on a field trip or studying abroad. College and university chiefs of police and directors of public safety must seek crime statistics for the area surrounding a hotel, school-owned facility, or foreign housing that are visited by students in areas as varied as Beijing, China and Madrid, Spain. These countries do not have any obligation to supply this information and most requests go unanswered after repeated, time-consuming efforts on the part of U.S. campuses. This requirement is contained in sub-regulatory guidance – not in law – and is not grounded in the intent of the law.
Investigative Authority – When campus law enforcement has primary jurisdiction for the campus community, they must be the lead investigative authority in response to reports of sexual assault and other major crimes, rather than the law enforcement agency of the unit of local government.
Current law does not recognize the difference between a campus law enforcement agency (sworn) and a campus security department (non-sworn) and can be interpreted to imply that non-campus local law enforcement agencies are by default better equipped and trained to investigate sexual assault and gender violence crimes. This failure to differentiate between the two has the ability to create a grossly inaccurate perception of our ability to serve, protect and assist victims (survivors) and bring perpetrators to justice. In fact, most campus law enforcement agencies can devote more trained and equipped resources to investigating sexual assaults than their municipal counterparts due to the case volume facing municipal departments.
Approximately 92 percent of public colleges and universities in the United States with a student enrollment of more than 2,500 have their own police department with sworn law enforcement officers. The corresponding number for private colleges and universities is 38 percent. In many cases, these police departments are larger, better trained and equipped than the local municipal or county law enforcement agency. Many have their own criminal investigation, evidence collection, and special victims units. Typically, these agencies have established a rapport with their students that local law enforcement agencies, by the nature of their work, have not established.
A criminal investigation by a campus law enforcement agency is independent of the administrative investigation required by Title IX. Although the investigations are independent of each other, the campus law enforcement agency is better positioned than a local law enforcement agency to coordinate the criminal investigation with the Title IX investigation so that trauma to the victim (survivor) is minimized.
Temporary Suspension of Administrative Investigations – In some cases, an administrative investigation may hinder or compromise a criminal investigation.
Accordingly, IACLEA supports proposals that allows for the temporary suspension of administrative investigations at the request of law enforcement. Our support is premised on the institution being required to take reasonable interim measures to alleviate a hostile environment, and to provide the accuser and the accused with regular status updates in writing.
Memorandums of Understanding – In general, institutions of higher education – and more specifically campus law enforcement – have a collaborative and professional working relationship with local law enforcement which requires the necessary sharing of information. IACLEA believes these organic relationships produce more beneficial outcomes for serving justice than efforts proposed which might require and rigidly define such relationships through complicated and inflexible memorandums of understanding.
IACLEA supports language in the PROSPER Act recommending that any memorandum of understanding between campus law enforcement and local law enforcement should “clarify the relationship and delineate the responsibilities” of each agency.
It is essential, however, that federal legislation be clear that when an institution of higher education has a campus police department, the MOU is between the campus police and local police departments, not between the “institution” and the local police department. An MOU between an institution and a local law enforcement agency is appropriate when the college or university does not have its own police department and relies on the local agency for law enforcement services.
Regulations Unrelated to Education, Safety, or Stewardship – The HEA's Clery and Title IX campus safety and gender violence provisions must be revised in the current reauthorization by simplifying needlessly complex provisions and striking provisions that are unnecessary, duplicative, or unrelated to the public safety roles and responsibilities of institutions of higher education.
For additional information please contact IACLEA Director of Government & External Relations, Jeff Allison, at firstname.lastname@example.org or (202) 618-8118.