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August 23, 2012

The worst may be yet to come for Penn State.  In the aftermath of the arrest and prosecution of former Penn State Assistant Football Coach Jerry Sandusky, the Department of Education ("DOE") may exercise its version of the "death penalty" and prohibit Penn State from participating in federal financial aid programs.  While it is unlikely that the DOE will issue the unprecedented penalty, Penn State's current situation highlights the reach of federal oversight and the importance of compliance.  


Mere days after Sandusky's arrest in November 2011, the DOE launched an investigation into Penn State's compliance with the Jeanne Clery Disclosure of Campus Security Policy and Campus Crime Statistics Act, 20 U.S.C.  1092(f) (the "Clery Act").  The Clery Act is a federal law applicable to all institutions of higher education that participate in federal student financial aid programs (the "Institutions").


The Clery Act is designed to provide Institutions' students, parents, and employees with timely, accurate information about campus safety.  To achieve this goal, the Clery Act requires Institutions to (a) collect crime statistics relating to certain crimes, including forcible and non-forcible sexual offenses ("Clery Crimes"); (b) make timely warnings of Clery Crimes that pose an ongoing threat to the community; and (c) prepare and distribute an annual safety report.


Penn State's compliance with the Clery Act was "lacking," according to the report of former FBI Director Louis Freeh.  In 1991, Penn State delegated Clery Act compliance to its Police Department's Crime Prevention Officer ("CPO").  The CPO did not receive training in Clery Act compliance until 16 years after assuming Clery Act responsibility and was unaware that the Clery Act required Penn State to collect crime data from campus security authorities ("CSAs"), including coaches and athletic directors.


As of the date of Sandusky's arrest in November 2011, Penn State had only a "draft" Clery Act policy that had not been implemented and, according to Freeh, Penn State employees had been provided little, if any, training and were unaware of their Clery Act obligations.  Further, no internal or external audits were conducted on Penn State's compliance with the Clery Act.


In the November 2011 Grand Jury Presentment, Penn State Assistant Football Coach Michael McQueary described an incident of a "sexual nature" between Sandusky and a young boy that took place in February 2001.  McQueary informed Head Football Coach Joseph Paterno of the incident.  Paterno, in turn, related the incident to Timothy Curley, Penn State's Athletic Director.  The conduct described by McQueary constitutes a Clery Crime of sexual assault.  As CSAs, Paterno, Curley and McQueary were obligated to report the incident to Penn State for inclusion in Clery Act statistics and for determining whether to issue a timely warning to the Penn State community.  In his investigation, Freeh found there was no record or indication that Paterno, Curley or McQueary met their Clery Act responsibilities.


While the reports of Sandusky's abuse prompted the DOE's independent Clery Act investigation into Penn State, the investigation is not limited to incidents involving Sandusky.  Instead, the DOE is conducting a full investigation of Penn State's Clery Act compliance over a 13 year period.  Given Penn State's reported history of lax compliance, the DOE may very well uncover numerous Clery Act violations.  


Penalties for violations of the Clery Act are harsh and include civil penalties up to $27,500 per incident, as well as a loss of federal student aid including grants, loans and work-study payments.  As Penn State receives $660 million in annual federal student aid, such a punishment could devastate the university.


The Penn State scandal has brought new focus on compliance with the Clery Act and many institutions are reevaluating their Clery Act policies.  Mirick O'Connell's Higher Education Law attorneys are ready to work with you and your institution if you have any concerns regarding your institution's Clery Act compliance.

Higher Education Law Group

Mirick O'Connell

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Westborough, MA  01581

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