Advisors Designated as Campus Security Authorities

Tim Burke, Manley Burke, tburke@manleyburke.com

In an August 8, 2014 memo to “Advisors of Recognized Student Organizations at Penn State,” the University’s Vice President of Student Affairs, Damon Sims, announced that Penn State has now designated advisors to recognize student organizations as “campus security authorities” under the Clery Act.

The Clery Act, in full, the Jeanne Clery Disclosure of Campus Security Policy and Campus Crime Statistics Act (20 U.S.C. 1092(f)), requires the reporting of certain crimes committed on or near campus and that those statistics be publicly available.  Attention has been refocused on the Clery Act with new federal regulations that are now out for public comment.  It appears that more campuses may be moving in the direction Penn State has just announced.

As campus security authorities, advisors will be expected to report any crime they observe or is reported to them that occurred on campus, in public areas around the campus, or in designated off-campus buildings owned or controlled by the university.  They are to do so in good faith when the advisor has a reasonable basis for believing that the information is neither rumor nor hearsay.  The advisor is not expected to determine whether or not a crime has actually been committed, but simply report and allow the investigation to be conducted by law enforcement authorities.

While the original Clery Act required reporting homicide, certain sex offenses, robbery, assault, burglary, car theft, arson and hate crimes to be reported, the list has now been increased by the Violence Against Women Reauthorization Act to include domestic violence, dating violence and stalking.  Penn State suggests that the advisors should not worry about whether or not the crime they may learn of is actually one of the listed offenses, but rather simply report their knowledge of the crimes and leave it to others to determine whether or not it has to be listed in the statistic reporting required by the Clery Act.

Vice President Sims responded to concerns about liability imposed on campus security authority this way:

“Some advisors have expressed concern about their possible legal liability related to Clery Act compliance, and this concern should never be wholly discounted.  Yet it is important to note that, in general, the University will indemnify a student organization advisor acting within the scope of his or her service as a campus security authority, in accordance with the University’s Bylaws and applicable law.”

In all likelihood, there is limited exposure to liability for reporting, in good faith, suspicions of criminal activity to law enforcement or an official designated by the University as a person to receive such reports.  Even more so when the obligation to do so has been imposed upon the individual making such a report.  It is of some comfort that the University is recognizing the advisors are acting as agents of the University and promising, without much detail, to indemnify them.

What could be a greater problem for a chapter advisor is how the reporting obligation may impact the willingness of chapter members to seek counsel or guidance from the chapter advisor.  Consider the active member who is dealing with the aftermath of a sexual assault and struggling with whether or not she wants to report that to law enforcement.  If she contacts the chapter advisor seeking guidance and reports to the chapter advisor that she has been raped, it triggers the obligation of that advisor as a campus security authority to report the crime.  What started out as an intended confidential conversation may not be so confidential.  While pastoral and professional counselors acting in the scope of their official responsibilities are exempt from Clery Act reporting requirements, such exemptions would not typically extend to chapter advisors.