U.S. Department of Education Suggests University Ombuds Should Report Crime Statistics

A recent DOE publication offering guidance on the Clery Act says that Ombuds should be reporting campus crime data.  The Clery Act is a federal statute that requires colleges and universities to keep and disclose information about crime on and near their campuses.  Failure to comply can impact federal funding.  Under the law, “Campus Security Authorities” are required to disclose any and all reports of crime, which are then collectively reported by the campus.  Previously the agency had declined to categorize Ombuds as Campus Security Authorities and the International Ombudsman Association has always asserted that doing so would conflict with Ombuds’ basic duty of confidentiality.  The DOE’s change in position was therefore unexpected and concerning.

According to the DOE’s “Handbook for Campus Safety and Security Reporting 2016 Edition,” published in June:

Examples of individuals (outside of a police or security department) who generally meet the criteria for being campus security authorities include

* * *

• an ombudsperson (including student ombudspersons)….

There is no analysis of why an Ombuds would be a Campus Security Authority, just inclusion on a list of a dozen administrative positions.

In my view, the legal analysis that lead to this conclusion is entirely faulty.  I cannot even understand how it was reached in light of the plain language of the DOE regulation.  The Clery Act (34 CFR §668.46) defines a “Campus Security Authority” as:

(1) A campus police department or a campus security department of an institution.

 (2) Any individual or individuals who have responsibility for campus security but who do not constitute a campus police department or a campus security department under paragraph (1) of this definition, such as an individual who is responsible for monitoring entrance into institutional property.

 (3) Any individual or organization specified in an institution's statement of campus security policy as an individual or organization to which students and employees should report criminal offenses.

 (4) An official of an institution who has significant responsibility for student and campus activities, including, but not limited to, student housing, student discipline, and campus judicial proceedings. If such an official is a pastoral or professional counselor as defined below, the official is not considered a campus security authority when acting as a pastoral or professional counselor.

The analysis was clearly laid out in the prior version of the DOE’s handbook (published in 2011 and available as an archived version):

Comments: Numerous commenters requested that we specifically exclude certain types of employees from the definition of a campus security authority--for example, lay counselors, dormitory rectors, physicians, access monitors, rape crisis counselors, doctoral counselor trainees, campus ombudsmen, and teaching faculty. Other commenters requested clarification about whether student security personnel organized by student governments and concert security employees who work for the institution are campus security authorities. Still other commenters asked us to define who is an “official” of the institution, and what “significant responsibility'' for student and campus activities means.

Discussion: To determine if an institution must collect crime statistics from a particular employee or official, or provide a timely warning report based on crimes reported or known to the employee or official, an institution must first determine if that official is a campus security authority. In addition to campus law enforcement staff, a campus security authority is someone with “significant responsibility for student and campus activities.” Absent this responsibility, an employee is not a campus security authority.

For example, a dean of students who oversees student housing, a student center, or student extra-curricular activities, has significant responsibility for student and campus activities. Similarly, a director of athletics, team coach, and faculty advisor to a student group also have significant responsibility for student and campus activities.

A single teaching faculty member is unlikely to have significant responsibility for student and campus activities, except when serving as an advisor to a student group. A physician in a campus health center or a counselor in a counseling center whose only responsibility is to provide care to students are unlikely to have significant responsibility for student and campus activities. Also, clerical staff are unlikely to have significant responsibility for student and campus activities.

The International Ombudsman Association recently published a white paper on the issue of confidentiality and Ombuds.  Although the memo is focused on Title IX and whether or not Ombuds are “responsible employees,” it also discusses the implications of the Clery Act, which are strikingly similar.  

The IOA memo points out that the DOE and White House “Not Alone” Task Force both have acknowledged the importance of confidential resources for students involved in cases of sexual misconduct.  Accordingly, several campuses that have deemed Ombuds as confidential under the Clery Act have extended the protection for Title IX matters.  (See, for example, the University of California’s recently-updated policy for Title IX matters.)  It is therefore difficult to reconcile the contradiction presented by the Department of Education’s recent pronouncement.