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The Campus Security Act: a recipe for litigation.

In 1986 Howard and Constance Cleary's daughter was brutally murdered at Lehigh University in Bethlehem, PA. Since then they have lobbied extensively to force states to adopt legislation requiring colleges and universities to disclose crime information to students and their parents. Their efforts resulted in what has become known throughout the country as "The Cleary Laws."

Unfortunately, the quality of those laws varied widely from state to state and did not adequately represent the Clearys' intent of making the data available so students and their parents could make informed decisions when selecting colleges. Seeking a more consistent and responsible law, the Clearys were aided by Rep. William Goodling, R-PA, who sponsored House bill 3344, known as the Crime Awareness and Campus Security Act of 1990, which President Bush signed into law in November.

However, the federal law does not only require the disclosure of crime data as well as crime prevention programming. It also requires documentation of policy statements, practices, procedures and other information dating back three years. It also mandates that the information be distributed to employees and applicants for employment. The magnitude of the document, much of its contents and the mass distribution requirements serve no functional purpose in the decision-making process for school selection or employment.

While the intent of the law was fairly well known during its drafting and promotion, legislation paid little attention to the actual provisions contained in the final version or their impact on educational institutions. As a result, the act passed with little or no opposition. Unfortunately, the failure to be more attentive to the provisions of the law may be one of the most expensive oversights, when compared to the intended outcomes, in the recent history of education, resulting in unwarranted costs and litigations for this nation's educational institutions.

College security directors, risk managers and attorneys are legally impacted by the act, as well as comptrollers and personnel, registration and student service managers. In fact, every part of an educational institution is adversely affected by the act's provisions. Furthermore, failure to comply with the provisions can result in the withdrawal of federal financial aid.

Requirements of the Act

Section 204(f) of the act lays out the disclosure requirements. It states that by August, educational institutions had to begin to collect specified data and "distribute [it] through appropriate publications or mailings to all current students and employees ... and to any applicant for enrollment or employment upon request, an annual report containing the following information ..." This information includes various policy statements, descriptions of crime prevention and available drug and alcohol programs, security authority and its relationship to law enforcement agencies, security-related maintenance programs and arrest data for drug and alcohol crimes and weapons possession. This document, which would probably run 20 to 25 pages, is defined as an "annual security report" and must be completed by September 1992.

This sort of law requires rules describing how to comply with its provisions. To date, those rules have not been written. Further, the Notice of Proposed Rule Making to be prepared by the Department of Education is not expected until early 1992. However, any rules must correspond with the language and intent of the law. Because the provisions of this law are so specific, little relief is expected from them through the rules. Therefore, with 1992 so close at hand, individuals responsible for implementation must review the act itself and interpret ensuing responsibilities as best they can.

Financial and Legal Implications

Reporting crimes to a campus population, and its attendant enhanced liabilities, is not the difficulty with this act. The problem concerns holding an institution responsible for those crimes and their prevention through a document composed primarily of policy statements force fed to a population mostly over the age of 18. Policies do not prevent crimes any more than laws do.

Although there is a statement in the act that "Nothing in this subsection shall be construed to authorize the Secretary to require particular policies, procedures, or practices ..." it is not the secretary with whom educational institutions must be concerned. It is with a jury of laymen confronted by an attorney who suggests that Congress saw the need for these requirements or it would not have addressed them in the legislation. Therefore, it would benefit an institution to develop such statements and policies even if not specifically required to do so.

College risk managers and attorneys are understandably concerned with written terms as they may jeopardize an institution's standing in liability litigation. Their goal is to keep well-meaning statements from being used in court to imply a knowledge of conditions or circumstances contributing to an injury or damage. They are also concerned with keeping these statements from being used to imply a duty to perform in a way different than was done.

The burden is on the plaintiff to prove negligence. A plaintiff's attorney will seek documents and correspondence supporting his or her client's position through "interrogatories" approved by the court. To get these items, attorneys must clearly state what they are seeking and for what period of time. From the information received, a case is built and decisions as to settlement or trial are formed. The document this act requires does much of the attorney's work in advance and serves as a recipe for trial and litigation. In this regard, it shifts the burden from the plaintiff to the defendant. The annual report is probably the first place a plaintiff's attorney will turn to identify an institution's weak spots.

By its very structure, the act creates a presumption that if all the policies and descriptions it requires are published and distributed, crimes will be prevented and victims spared. Since the prescribed document serves as a basis for school selection, it will certainly be viewed as a contract between the college and the student. It is this contractual element that should be of concern. Although many colleges and universities have long ago written broad-based policy statements concerning security, those statements were not legally obligatory. Certainly, there is nothing wrong with having such policies. It is their required manner of publication and distribution, the contractual nature of the final document and the presumption that school selection and student behavior will be determined by them that builds unnecessary legal liabilities.

The act is specific regarding references to policies and policy statements. When a college or university writes a policy, it is followed by an implementation procedure. If a policy concerns access to facilities, for example, the institution must describe the procedure for its implementation as well as whether it has consistently followed that procedure. Institutions that believe they can buffer their liabilities with a broad-based, innocuous statement could be expensively proven wrong.

As a result of the act, students call claim they chose a school based on policy statements. Whether or not that is true is almost impossible to prove. Students can also claim they behaved in a certain way based on their interpretation of those policy statements and the level of protection they believed the statements provided. They may claim they took a certain path after dark, parked their vehicle in a certain place or attended a certain event because the college promised to protect them.

When reviewing the annual report, the plaintiff's attorney will try to determine whether the institution properly distributed the document and whether it contains the prescribed information. He or she will also check the implementation and enforcement of policy statements. For example, were trees and shrubs properly cut and lighting properly maintained according to the policy on security considerations used in maintenance of campus facilities? In addition, the attorney will ask such questions as, Are programs designed to inform students and employees about campus security and encourage them to be responsible for the security of themselves and others? Were programs offered frequently enough? How effective were they and how was effectiveness determined?

Distributing Information

The required information must be distributed every year to students and employees already enrolled in or employed by the institution regardless of whether they request it. Further, nowhere does the act make any distinction between full-and part-time students or employees or between academic and continuing education students. Unless the rules to be developed address this matter, an institution must presume no such distinction exists.

Using Miami-Dade Community College as an example, if distribution is restricted to students taking academic courses and full-time employees, that represents about 80,000 mandatory copies of a 25-page document. At 50 cents each to print, an annual cost of $40,000 is incurred. Applicants for enrollment or employment who request the information represent another 70,000 individuals each year. Therefore, printing costs alone could reach upward of $60,000. Because the method of distribution has not been made, costs cannot be estimated. However, if mailings are required, the costs will be astronomical.

The college or university, not the local police agency, is responsible for data collection. That leaves the educational institution subject to the cooperation of local police for the provision of much of the required data; in some cases data rests in more than one police agency Not only will the extent of that cooperation be budget-driven, but access to the required information may be restricted or the data so sterilized by local police reporting procedures as to be nonconforming with the act's provisions. Eventually, local police may charge fees for providing data and reprogramming their computers.

A printout for crime information usually comes in the form of a "grid" report, which often represents several square miles and must be culled for the address(es) that correspond to the college campus(es). Every campus of the institution, its outreach centers and any facility used "in direct support of, or related to, its educational purpose" is covered, including facilities controlled by student organizations. This will often mean more than one report to sort from more than one police jurisdiction.

Although several departments of an institution are responsible for contributing to the required document, the security director will most likely assume responsibility for monitoring compliance. The director will have to enforce policy, monitor implementation procedures and interact with faculty, staff and students in ways not previously under his or her jurisdiction. To protect the institution, breaches of policy or procedure will have to be reported. Does the director dare put that information in writing?

Recipe for Litigation

For the most part, colleges and universities deal with young and middle-aged adults with some degree of personal responsibility. Most understand the world around them and that what occurs on a college campus is a microcosm of what happens in society at large. The act should have dealt with a more reasonable level of information disclosure than the spoonfed distribution of nearly every conceivable institutional action, policy and practice.

The task ahead is monumental. Furthermore, the solution does not lie solely in divvying up the responsibilities among human resources, admissions, registration, student services, security, facilities management, residential services and local police. Coordinating policies, supervising semantics, enforcement mechanisms and compiling data must be affected in one place, reviewed by legal counsel, then reduced to the final document. All this takes time, money and resources-luxuries that most institutions lack. John S. Megerson is director of district security for Miami-Dade Community College.
COPYRIGHT 1991 Risk Management Society Publishing, Inc.
No portion of this article can be reproduced without the express written permission from the copyright holder.
Copyright 1991 Gale, Cengage Learning. All rights reserved.

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Author:Megerson, John S.
Publication:Risk Management
Date:Sep 1, 1991
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