The Brown and White spoke with William Thro, the General Counsel at the University of Kentucky, to learn more about the recent probe the Clery Group at the U.S. Department of Education is conducting of Lehigh. Thro is the former Solicitor General of Virginia and an education law scholar. He is a recipient of Stetson University’s Kaplin Award, a higher education law and policy scholarship, and the recipient of the Education Law Association’s McGhehey Award for contributions to education law. You can read more about him here.
Q: From your point of view, can you explain the Clery Act, its intent and its importance across higher education?
William Thro: The Clery Act was passed originally to ensure that everyone in a university community, as well as prospective members of the university community, were fully aware of the conditions on the ground with respect to crimes taking place. It was passed in response to a tragedy involving your campus where a young woman was raped and killed, and there was some information about a crime in the surrounding area that had not been actually shared. It forces institutions to keep track of these sorts of things and to make reports.
It’s enormously important for private institutions, which are not subject to open meetings or open records acts, and could therefore keep this secretly. It’s perhaps less important for public institutions which do have some obligations under state open records laws, but Clery Act certainly reinforces those and makes sure that people are reporting crimes and making this information available. It is in some respects imperfect in that the definition of incidents are overly broad at times, or we have to include things that happen nearby but not necessarily on our campus and things that we don’t necessarily have any control over. This also comes into play in facilities that we use in other locations.
Q: What is your role at Kentucky in terms of ensuring your university is in compliance with Clery?
WT: I certainly want to make sure that (University of Kentucky) is in compliance. It’s not something that we spend a great deal of time, at least me. Our police department handles it. I typically review the report before it goes in, but our police do a good job of tracking. There are some discrepancies and part of that is because, for example, Clery uses a slightly different definition of certain activities than, say, Title IX. Other than that, it’s not something we spend a great deal of time with. In terms of probably the most famous Clery case, and one that I was actually tangentially involved in, involved Virginia Tech which got hit with Clery fines and penalties after the Virginia Tech shooting in 2007. The argument was that the university should have notified the entire student body when they discovered what appeared to be a murder-suicide in a dorm and should have gone on campus lockdown at that particular moment. One can debate the wisdom of the university’s course of action. Obviously every campus is somewhat different.
I think, for the most part, Clery has worked well in that I think most institutions are doing what is required to comply and are complying or attempting to comply in good faith. Any time you have an institution where human beings are filing reports there is obviously a possibility that something will be missed, double counted, that sort of thing. But there’s obviously a huge difference between I had 100 cases and I ended up reporting 99 or I reported 102 because I double counted a couple of things, and ‘I’m choosing not to report that.’
Q: After having seen the letter Lehigh received from the Department of Education, how serious do you think it is, and how might it compare to other situations at other institutions?
WT: I think it’s important to remember that the federal government has an obligation to investigate any allegation of wrongdoing or noncompliance. While Kentucky during my time here has not received any inquiries of Clery Act compliance, we do periodically receive inquiries involving the U.S. Department of Education’s Office of Civil Rights. They have an obligation to investigate. The mere fact that they’re investigating doesn’t necessarily mean that there is anything there as much as it means, ‘OK, somebody said something was there, and we need to take another look.’
In some respects, the letter contains words that I think would seem ominous if you had not seen a couple of dozen of these. But at the same time, if you’ve seen a couple of dozen of these (letters), there’s a part of you that goes, ‘This is probably standard boilerplate type thing,’ and you let the investigation run its course. If they find something, I’m sure they’ll tell the university and expect some sort of remedial action to correct it and may impose some sort of penalties.
Q: How long do you think these reviews typically take?
WT: I’ve seen in other contexts that something would be sent in and they would say, ‘Send us all kinds of information,’ and we did, and a month later they said, ‘Thank you,’ and it was resolved. I’ve also seen some of these go on for years and years. I think it’s fair that the federal government is going to be thorough before reaching any conclusion. The other thing that I’m not aware of is how exactly the COVID pandemic is affecting both the federal government and the university’s response.
Editor’s note: Following the interview, The Brown and White became aware of a recent report stating the Department of Education now attempts to resolve Clery Act complaints in a matter of months — faster than in the past.
Q: To your knowledge, what information might Clery be seeking, and who might they want to talk to?
WT: They want to know everything that the university has sent in, and will want to compare that to the reality on the ground. They’re probably going to look at logs from the local police department. If they see something that in their view should have been reported and was not, they’re probably going to ask, ‘Why didn’t you report that?’ And that could be as simple as, ‘That happened on Fourth Street and we think our jurisdiction boundaries for Clery only go to Third’ or, ‘Oops, we thought that happened on Fifth but it’s actually on Fourth.’ You dig down and go.
I think it’s important to recognize a difference between something happening by mistake, and something happening intentionally. And I think the feds will want to make sure, number one, did something happen, and number two, if something happened, why? Was that by mistake… sort of a negligence standard, as opposed to just, ‘Yeah, I know I was supposed to report that, but I chose not to.’ They’re going to be far more concerned about the intentional misleading than they are about something that happened inadvertently or because somebody was negligent.
WT: I think that’s probably an indication that they have some concerns about a possible disconnect between what was submitted in terms of the Clery report and the existence of allegations involving those two individuals. To put it in simple terms, if you’re looking at a Clery Act report, and you read in the newspaper that such and such incident happened, and that’s not in the Clery report, then I think you might say…. Why isn’t that in there? But there may be good solid reasons for that.
Obviously if there is a sexual assault that took place, one would expect it to show up on the Clery report absent some other extenuating circumstances. If there was not one that took place, you don’t report rumors. So I would expect that there’s maybe going to be some questions, well number one, did something take place, and if there was, why wasn’t it reported?
Q: How public do you expect the findings of the review to be made?
WT: My understanding is once we get to a final decision, that the final letter of finding or any resolution would become a public document which you and your colleagues could acquire with an open records act request. There may be some redactions with respect to the names of individuals. But if they say, ‘We hereby fully vindicate Lehigh’ or ‘We find Lehigh guilty,’ I would imagine you would be able to get to the document that has that substance. I think if the university is cleared, the university may well issue a press release. If the university is not cleared, I would expect that they probably wouldn’t.
Q: Based on your experiences in Virginia and now your time at Kentucky, how might a situation like the one taking place at Lehigh “change” a university? If it does change, in what ways, in relation to the university’s culture or how the administration interacts with the student body and faculty?
WT: I think it has the potential to change, particularly if there’s something wrong. If there’s an allegation that Prof. X raped Prof. Y, and the university investigates and concludes that it did not happen, the university is going to say, ‘OK, we checked that box, our process worked as it was supposed to and we move on.’ If it does happen, and you then take decisive measures, I think there is always a tendency to say, ‘OK, why did this happen, what can we do to keep it from happening again, if it does happen again what can we do to encourage reporting, to support the victims and also how can we do the investigation better or the process better?’ I think probably when we discover bad behavior, that helps the university as a whole get better. If you don’t discover bad behavior, it probably does not change that much.
Q: Do you in your job feel a tug of war between transparency and confidentiality?
WT: Absolutely. We have a case at the Supreme Court of Kentucky involving allegations that a professor sexually assaulted two students. We conducted a thorough investigation and concluded that he did. The faculty member ended up resigning. Our student newspaper asked for the investigative file. The sexual assault survivors, however, don’t want that investigative file turned over. This highlights the tension between the statutory and constitutional rights of privacy. If you’re a sexual assault victim, you have a constitutional right to privacy not to have the details of that sexual assault revealed except in the context of criminal prosecution. That’s the law in the 6th Circuit (Court of Appeals). It’s not something that you want necessarily revealed.
At the same time, if you’ve got an allegation where the provost raped his secretary, the university is going to have to investigate that. If it however comes out that there was nothing to it, both the provost and the alleged victim deny it, there’s no corroborating evidence whatsoever, stating that the provost was accused of rape has a huge, devastating affect on his future career. So I think there has to be a level of confidentiality to sort of protect the innocent, or presumed innocent.
We have historically been very reluctant to release any findings for people who are accused. If we find somebody guilty, then we would typically release that. But I think there is a way to ensure the university community that we are taking this seriously, that we are thoroughly investigating, while protecting the privacy of both the accused and of the victim.
Q: Was there anything else I didn’t touch on that you wanted to talk about?
WT: I think it’s important to recognize that the university is presumed innocent. There are details that obviously I don’t know, there are details that you don’t know, that your General Counsel or anyone at Lehigh can’t necessarily share with you.
Obviously, the federal government has some interest, we’ll see where it plays out. You’ve got some things that are interesting in that you have a faculty member who was accused and suddenly resigned, you have the faculty member who was a victim, the one making the accusation, who then turned around and sued the university — who was not able to prevail against the university. That doesn’t necessarily mean that nothing happened as much as it means the court found the university acted responsibly.