JOHNSON & WALES U. PREVAILS IN LITIGATION INVOLVING THE CLERY ACT; EASTERN MICHIGAN U. FINED $357,500 FOR CLERY ACT VIOLATONS

Daniel McCarthy, Manley Burke

Two recent cases highlight the importance of the Clery Act on college administrators.  First, in December, the United States Court of Appeals for the First Circuit ruled in favor of Johnson & Wales University in a case in which a former student at the Providence, Rhode Island school sued for defamation after the school named him as an assailant in a crime alert.¹  Then in January, the United States Department of Education fined Eastern Michigan University $357,500 for failing to warn the campus community of a student’s murder.

The Clery Act Defined

The court’s opinion in Johnson & Wales gives a very good primer and summary of the Clery Act, which is codified at 20 U.S.C. §1092(f).  In general, the Clery Act requires colleges and universities that receive federal financial aid to notify their campus communities, including students, faculty, employees and others, of certain reported crimes.  Colleges and universities must make “timely reports to the campus community on [certain] crimes considered to be a threat to other students and employees… that are reported to campus security or local law police agencies.”²  The Act only applies to murder, manslaughter, aggravated assault, sex offenses, robbery, burglary, motor vehicle theft, arson, liquor, drug, weapons offenses and hate crimes.

The Act is named after Jeanne Ann Clery, who was killed in 1986 while a freshman at Lehigh University.  Ms. Clery’s parents led the effort to enact legislation after they learned that students had not been told about numerous violent crimes on the Lehigh campus in the three years before her murder.  The Clery Act was initially signed into law in 1990 and has undergone several amendments, including as part of the Higher Education Amendments of 1998.

The Act now requires schools to report the covered crimes that occur not only on campus, but also on certain property located near campus used in support of the school’s educational mission.  Schools have broad discretion to determine how best to inform their constituent communities of the relevant crimes.  The court stated “[a]s we read the Act, it vests substantial discretion in each campus security office to phrase and disseminate reports in those ways that the particular institution deems best suited to apprise its constituent campus communities of incipient criminal activity.”

The United States Department of Education is tasked with enforcing the Act.  Schools that fail to comply with the Act’s reporting requirements are subject to discipline, including monetary fines.

Johnson & Wales prevails

The Johnson & Wales case is the first time a federal appellate court has interpreted the Act’s notification requirements.  In the case, Christopher Havlik was a student at Johnson & Wales, and was a member of a fraternity.  He was involved in a fight with another student, Donald Ratcliffe, on September 16, 2004.  Havlik punched Ratcliffe, knocking him to the ground.  Ratcliffe hit his head on the sidewalk and suffered a concussion and a fractured skull.

Havlik was arrested for his participation in the fight.  The University also investigated the fight.  The University issued an incident report, which stated that the fight was probably fraternity related; that Havlik was the likely aggressor; and that Havlik reportedly showed a knife at the fight.  The University then temporarily suspended Havlik and charged with him with three violations of the student code of conduct.  The school’s conduct board held a hearing on the charges and recommended that Havlik be dismissed from the school.  His dismissal was upheld on appeal.

While the school was preparing to hold the hearing on the code of conduct charges, Barbara Bennett, the University’s chief in-house counsel, reviewed and edited a crime alert about the incident.  The crime alert described the incident and stated that members of Havlik’s fraternity were involved, while also naming Havlik as the party reportedly responsible for the crime.  Members of the University’s campus safety and security office posted the crime alert in various places around campus.

Havlik was also charged criminally with criminal assault.  Though he was initially convicted during a bench trial, he appealed to the superior court and was acquitted by a jury during a trial de novo.

Having obtained his acquittal, Havlik then sued the University in federal district court.  He sued for defamatory publication of false information because of the crime alert and for breach of contract for the University’s alleged failure to provide a fair appeal process.

The court conducted a thorough review of the history and purpose of the Clery Act and determined that the University had a duty under the Act to report the incident.  Havlik argued that the University failed to act reasonably in issuing the crime alert.  The court rejected that argument, finding that, “common sense must inform a court’s assessment of the reasonableness of a university’s belief that the reporting of a crime is compulsory under the Act.  And in making that assessment, the need to assure safety and security for campus communities counsels that doubts should be resolved in favor of notification.”

The court found that the Clery Act provided the University with a qualified privilege against the defamation claim: “school officials must act expeditiously to satisfy their responsibilities under the Clery Act, and a reasonable belief—even if later shown to be incorrect in some particular—is all that is required for the qualified privilege to attach.”

Havlik also asserted a contract claim concerning the appeal of his dismissal from school.  The Court reiterated that the relationship between a university and its students is contractual in nature.  However, the court held that Havlik’s contractual rights were not violated.

Eastern Michigan Fined $357,500 for 13 Clery Act Violations

Laura Dickinson was found dead in her dorm room at Eastern Michigan University in December 2006.  The facts surrounding her death indicated that she was a victim of a violent crime.  The university issued a press release the day after Ms. Dickinson was discovered, stating that “at this point there is no reason to suspect foul play.”  The university continued to publicly state that there was no reason to suspect foul play, even though the police were investigating the case as a homicide.  The university even told Ms. Dickinson’s parents that there was no reason to suspect foul play, going so far as saying they thought she died of a heart condition.

On February 23, 2007, police arrested Orange Amir Taylor, III, another student, with Ms. Dickinson’s rape and murder.  It was only at that point, ten weeks after the death, that the University advised the campus community and her parents of specific information about the crime.  The Department of Education found that the university clearly violated the timely warning requirements of the Clery Act.

In all, the Department found 13 separate Clery Act violations.  Because of the egregious nature of the violations, the university was fined the maximum, $27,000, per violation, for a total of $357,500.

¹  Christopher Havlik v. Johnson & Wales University, 509 F.3d 25, C.A.1 (R.I.) 2007.

²  Id. citing 20 U.S.C. §1092(f)(3).