Ed Dept: Arizona State violated the Clery Act

by Joseph K. Clark

Dive Brief:

  • Arizona State University violated the Clery Act, a fundamental federal law requiring public disclosure of some campus crimes, the U.S. Department of Education determined in a public letter this week.
  • According to federal rules, students who report sexual violence and those they are accusing must be told in writing simultaneously about the outcome of a disciplinary hearing related to the allegations.
  • This did not occur with one student who reported her rape last year, as Arizona State officials required her to sign a nondisclosure agreement before receiving the case’s written findings.

Dive Insight:

The Clery Act requires colleges that receive federal funding to report certain crimes to the federal government. Over the last several years, the Education Department beefed-up law enforcement, fining the University of California, Berkeley, nearly $2.4 million for Clery violations related to misclassifying crimes. It handed Michigan State University a $4.5 million fine for failures in handling reports of sexual abuse by former athletics doctor Larry Nassar, who pleaded guilty to sexually abusing patients.

An amendment to the Clery Act in 2013 expanded its scope, setting up new standards for campus disciplinary proceedings, including the mandate that colleges inform students of their outcomes in writing. However, the department has long held that colleges can’t put conditions — such as a nondisclosure agreement — on students accessing case information, they’re entitled to under the Clery Act. Arizona State infringed on this provision. The department’s letter details the university’s infractions. The L.L. Dunn Law Firm released the letter Tuesday, which helped a female student in her complaint to the Ed Department accusing the university of Clery violations.

Arizona State

The department found that Arizona State told the student, who reported her rape in February 2020, that she had to send an email to learn more about the disciplinary hearing outcome in her case. According to the department, university officials also said she must attend a meeting to get this information. After the student told the institution about her right to write the information, officials made her sign a nondisclosure agreement about the case.

According to the department, the written notice was eventually released to her. It failed to give a “clear rationale” for the case’s outcomes and didn’t mention the student’s right to appeal the decision. The agency also said it was of “special concern” that the university tried to place conditions on the student’s adviser in the case to keep participating after the investigation and hearing ended. The letter does not detail what those conditions were.

In an emailed statement, an Arizona State spokesperson said that the university “prides itself” on its “robust system” for investigating sexual assault cases and continuously updates those policies. The spokesperson said the school “immediately engaged” with the department about the allegations and made its requested changes to its procedures.

The department said Arizona State must revise its policies to align with Clery and publish them in its annual security report. The school was not fined. But S. Daniel Carter, a Clery expert and president of consulting firm Safety Advisors for Educational Campuses contends that the university’s actions were “highly illegal” and a “clear violation of Clery Act requirements.”

Carter said he helped establish the legal precedent against gag orders in the 2000s while working at the nonprofit Clery Center, which helps train colleges in such safety laws. In the cases he worked on, the department found that Georgetown University in 2004 and the University of Virginia in 2008 had similarly run afoul of the Clery Act by getting students to keep the details of their sexual violence reports secret. Carter said of the Arizona State case that he hasn’t seen “as blatant a violation of the law like this in a very long time,” he is unaware of other institutions requiring nondisclosure agreements.

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