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How Unnecessary Data Reporting Requirements Turned a $44 Theft into a $10,000 Federal Headache | Commentary

In June 2008, a thief entered a custodial room at the University of Nebraska at Kearney and took a bag of Ruffles chips, some Little Debbie Nutty Bars, and a set of two-way radios — a combined value of $44.88. Six years later, the same incident is costing the university $10,000, all because of a dispute with the U.S. Department of Education over whether the space where the theft took place was a closet or an office.

How a six-year-old custodial caper morphed into massive monetary damages illustrates where well-intentioned federal data collection turns into unproductive burden. Given the significant interest on Capitol Hill about federal burden affecting higher education cost, it’s a compelling example of where we’ve gone too far in what schools are asked to do.

The UNK fine is part of a $65,000 package of penalties that the department levied in July based upon a 2010 review of the school’s campus crime statistics. The department’s concern is whether the custodial space was public or private. The university believes the space was a public closet because it had no lock and could be accessed by anyone in the building. But the incident report referred to the area as an office. The department focused on that word, determining that an office indicates a private space — meaning any theft from it also entailed breaking and entering, which turns an act of larceny into a burglary.

While the distinction between larceny and burglary seems small, it makes a big difference in the eyes of one federal law: the Jeanne Clery Disclosure of Campus Security Policy and Campus Crime Statistics Act.

The Clery Act has a heartbreaking genesis. In 1986, Lehigh University freshman Jeanne Clery was raped and murdered in her dorm room by a fellow student. Concerned that colleges did not properly alert students of crimes on campus, Jeanne’s parents worked with Congress to create the 1990 law. It requires colleges to provide students and employees with an annual security report detailing the incidence of crimes on and around campus, notification of campus security policies, and timely alerts in the case of crimes that could threaten the campus. Failing to follow these requirements can generate fines of up to $35,000 per violation.

The Clery Act covers major crimes as well as lesser charges like robberies and liquor and drug law violations. It includes burglaries but not larcenies. So the Department’s finding that UNK’s incorrectly categorized the janitorial theft meant the school violated the law. (The rest of the fines were due to improper geographic classification of liquor, drugs, and weapons violations, and a failure to notify graduate students and employees of the 2009 security report.)

The Clery Act is politically challenging. Its tragic beginnings and the desire to avoid being seen as soft of crime makes it easier to add requirements than delete them. This creates a data catch-all that imposes significant burdens on institutions without necessarily addressing substantive issues. On some campuses, Clery Act compliance can require a full-time employee and months of work.

Two competing Congressional goals provide a chance to make the Clery Act work better for colleges and the federal government. First, there’s strong congressional interest in reducing federal burden on colleges, including a bipartisan task force studying the issue.

Second, there’s a fear that colleges do a poor job handling sexual assaults. Eight senators, including Claire McCaskill, D-Mo., and Kirsten Gillibrand, D-N.Y., recently introduced bipartisan legislation addressing this issue by requiring colleges to conduct anonymous surveys of how sexual assault is viewed on campus and offer special private advising for victims.

Why not make a trade and satisfy both groups? First, refocus the Clery Act to emphasize serious violent crimes, especially sexual assault as suggested by McCaskill and Gillibrand. Since that adds work for colleges, get rid of other unimportant Congressional requirements. Drop robberies, burglaries, motor vehicle thefts, and drug and liquor law violations from Clery reporting. Stop requiring institutions to compile detailed reports of every single on-campus fire. Eliminate non-security requirements like disclosing policies on illegal file sharing and holding educational programs about the U.S. Constitution each Sept. 17.

Educational quality won’t suffer if these requirements go away. And refocusing Clery on what really matters lets schools address real issues, not litigate semantic debates that turn petty theft into $10,000 fines.

Ben Miller is a senior policy analyst at the New America Foundation and a former senior policy advisor at the U.S. Department of Education.

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