Since the Department of Education’s rescission of the Handbook for Campus Safety and Security Reporting on October 9, 2020, we have received numerous questions and concerns from campus safety administrators trying to navigate the loss of this guide. Below is a brief summary (in text and video formats!) of some of the most frequently asked questions we have received and our responses to them.

Q: With the Handbook for Campus Safety and Security Reporting rescinded, what do we use to know how to comply with the Clery Act?

A: The short answer is to use the Clery Act statute and regulations themselves.  The Department of Education’s actions last week reinforced that anything beyond the statute and regulations is not legally binding — which was always the case with the Handbook, a sub-regulatory guidance document.

The Appendix replacing the Handbook predominantly reiterates statutory and regulatory language and offers minimal guidance on CSAs, Clery geography, and Clery crimes, but is also not legally binding.

Q: The Appendix seems vague on how to enact Clery Act requirements. What are we supposed to do now?

A: In an effort to scale back what the Department of Education called “expansive overreach” in the Handbook, the Appendix stresses campuses have the latitude to make determinations for more ambiguous parts of the law. For example, in rescinding the Handbook, the Department has eliminated guidance on which list of roles at an institution the Department would consider to be CSAs. The Appendix states the Department will defer to an institution’s designation of CSAs and provide technical assistance for areas where there are questions but does not provide any examples of roles it would consider to be CSAs.

Additionally, the definition of “reasonably contiguous” included in the 2016 Handbook is no longer considered guidance upon which campuses should rely.  Instead, campuses should make their own determinations about what is and is not considered reasonably contiguous for the purposes of counting on-campus geography.

An institution’s internal policies and protocols for how they interpret and consistently apply the regulations will be even more important than ever without the Handbook to help provide context on how ED interprets them.

Q: Should we be making changes to who is considered a campus security authority (CSA) at our institution?

A: It depends. While the Appendix does not offer examples of who the Department would consider to be a CSA, CSAs are still defined in the regulations and therefore an institution should document and be able to articulate who they determined to be CSAs as aligned with that definition.  Therefore, if someone who used to be considered a CSA because they met the definition of “officials with significant responsibility for student and campus activities” as that phrase was described within the Handbook is no longer considered to be a CSA by the institution, they should be prepared to describe why the function of that role, in their interpretation, no longer meets the definition.

Q: Are there any changes for counting off campus trips as part of noncampus geography?

A: The Appendix did not include any guidance on how to determine whether or not institution-sponsored student trips fall within Clery geography. The 2016 Handbook contained the only formal guidance in this area and with it now rescinded and archived that guidance should not be relied upon, according to the Department of Education.

Therefore, as is typical with Clery, the answer to this question is “It depends”.  Under the previous guidance, trips fell in the noncampus category if the institution owned or controlled property that was frequently used by students and used for educational purposes but not within the institution’s reasonably contiguous on-campus geography. With that in mind, institutions will need to decide what they determine to be frequent use by students. The Handbook gave institutions recommendations how the length of time or repeated use should factor into this decision; the removal of the Handbook gives institutions flexibility to determine how they will consistently evaluate frequent use. A campus is not necessarily prohibited from continuing to count those locations as they have for the past four years.  It is now up to institutions to determine whether or not it makes sense and supports overall campus safety to continue to count institution sponsored student trips as Clery geography or not.

Q: How does the Handbook rescission impact adhering to the Title IX regulations?

A: It doesn’t. As the Clery Act statute and regulations remain intact, campuses are still required to adhere to both the Clery Act and Title IX regulations in full even though the Handbook has been rescinded.  There are some aspects of resource provision for cases of dating violence, domestic violence, sexual assault, and stalking that were helpfully expanded upon within the Handbook.  As the new Title IX regulations cover cases of dating violence, domestic violence, sexual assault, and stalking as defined under the Clery Act and as campuses are being directed by the Department of Education to no longer rely upon the Handbook as guidance, refer to the preamble of the Clery Act regulations (as amended by VAWA) for further context in applying some of those requirements.

We hope these questions and answers were helpful as you continue to navigate this news and that you’ll continue to look to Clery Center in the coming weeks as we further internalize the implications of this rescission and share our recommendations.