Higher Education Renaissance
Peter Lake is a Professor of Law who has never shied away from addressing the controversial topics that impact higher education with his trademark candid, unique, and often humorous approach. Eric Seaborg has created this podcast series to capture the insight of Peter Lake on the status of higher education. Eric will have Peter analyzing the key issues challenging the industry of post-secondary education and the future direction of our institutions across the nation.
Higher Education Renaissance
The Evolution of the Clery Act Shaping the New D.O.E.
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Do you know the tragic story that led to the creation of the Clery Act? Do you understand the profound influence it has on campus safety and compliance? Walk with us through the hallowed halls of higher education, as we dissect the history, evolution and significance of the Clery Act. Listen to the gripping tale of Jeanne Clery's unfortunate demise leading to the establishment of the Clery Center for Security on Campus. We spotlight the growing seriousness of the Act's enforcement, leading up to recent hefty fines issued to Grand Canyon University and Liberty University by the new aggressive Department of Education.
There's a plaque outside of Stouton Hall on the campus of Lehigh University that reads, lest we forget the meaning of our death, that we must protect one another so that our life will not have been in vain. It's a place that, over 37 years ago, a crime of opportunity occurred that resulted in the rape and murder of first-year student Jean Cleary, and sadly it's labeled a crime of opportunity because another student, named Joseph Henry, took advantage of a series of unlocked, propped-open doors to enter what he believed to be an empty room for him to rob. Unfortunately, jean was in her room asleep at the time and was suddenly awakened from her sleep when she heard someone in her room. She struggled with Henry, but was unable to fend off the attack and was eventually killed. Her parents, connie and Howard Cleary, were successful years later, starting the nonprofit Cleary Center for Security on Campus, which led to new detailed crime reporting mandates required of the nation's institutions.
Speaker 2:And it gained national attention and the family had Congress in the palm of their hand and they said we want a campus crime reporting bill.
Speaker 3:From MC1R Studios. This is Higher Education Renaissance with Peter Lake.
Speaker 2:If you think that Cleary is just compiling annual ASR annual security report, things have changed. You can't just tick the box, get the report out, move to next year. You're going to have to demonstrate to the department if they call you into account is do you have a culture of compliance, particularly when it's shooting to prevent and remediate problems? And if you don't, the checkbook might come out. Having worked with victims' families, I did not work with the Cleary's on this, but very aware of what they were doing, very similar to other victims' advocate groups. One of the things a lot of victim advocate groups want to do is raise awareness. I want people to realize that this is not a small issue. People get hurt. So the campus crime reporting bill Cleary Act was born.
Speaker 1:The basic framework of the Cleary Act requires that any institution who receives federal funding must file an annual safety report, or ASR, by October 1st each year. The report must include crime statistics for the preceding three years and any efforts that are being undertaken to improve campus safety. The ASR must also include any policy statements regarding a host of other crime-oriented categories and prevention activities.
Speaker 2:On the feeling I think the campuses were ultra safe. This was a job you could retire into or you could have more of an ersatz force to manage because you weren't looking at an environment that called for high security, not like the Pentagon or Department of Justice building. That was thinking. That was pretty typical. We've talked about this before. A lot of the chiefs of police reported to a business officer and had no access to seeing their senior leadership. That was meaningful. They were security people and, I think, often looked down on part of the chain. They weren't thought of as student affairs people. I never agreed with that, but I saw that a lot.
Speaker 1:Yeah, I agree, the Cleary Act in the early years was definitely a concern for the public safety teams on campus and, of course, the student affairs folks who provided their reports to security. As long as the enrollment didn't take a hit, cleary concerns didn't go beyond those departments, I would think. But Peter, has it changed much over the years? I have a tendency to believe the focus these days on prevention and compliance issues has evolved.
Speaker 2:This particular mandate, Since then it's been amended a few times to include things that look a lot more used the right term where prevention ran. So you have emergency and timely warnings. There are requirements that you report on various efforts to do prevention work. For most people and for most compliance purposes it's been kind of a snoozer. It's something that a handful of us pay a lot of attention to but a lot of people don't. We know from statistics over the years that a lot of people haven't been reading Cleary Reports.
Speaker 1:It's been debated that individuals are so overwhelmed with information, such as what's required in the Cleary Act reporting, that much of it is useless or even incomprehensible, and therefore parents or students do read it, they're apt to miss pieces of information that might be important.
Speaker 2:From time to time there have been technical compliance issues that have come up. They generally not resulted in large fines and the perfect example was Virginia Tech got fined $50 something thousand dollars after the shooting and people were outraged and frankly I was not pleased with the department's response on that one, because there was absolutely no mention of the fact that LeBrescu sacrificed his life to save students and I thought, okay, if you're going to find them, that's what parking people do, as they find you, but you could at least have the humanity to recognize the sacrifice that was made by some people to save lives that actually work. But that fine was symbolic and I almost wondered if the department sort of felt like they had to do something because it was such a big incident. This is why I contacted. You is very recently. The Department of Education has decided to go into super fine mode.
Speaker 1:I want to pause here for a moment because Peter stating that he reached out to me brings up a question that many of you have asked about why we don't publish our shows on a more standardized podcast schedule. And the answer is simple it's because we decide to record only when an important event or issue is unfolded, An event that may certainly have impact on higher education. So when Peter contacted me, it was in reference to the number and amount of fines coming from the Department of Education recently, and therefore this is today's topic.
Speaker 2:And we are now seeing stuff that rocks the house in a big way. Grand Canyon just got fined $37 million, you know, and you're talking an order of magnitude larger than fines that we've been seeing Now. The other one, which has got everyone's attention, including the New York Times and the Wall Street Journal, is Liberty also up for another staggering fine. Now there was a leaked report. Numbers were thrown around. We don't know what that's going to look like in the end, but it's hard to believe that Liberty is not going to get something with a big kick in the rear end and a whopping fine. That's well beyond what we'd ever seen before millions and millions of dollars.
Speaker 1:So, peter, let's connect the dots here.
Speaker 2:Grand Canyon has had a faith mission. So has Liberty. Grand Canyon has sought to be both profit and nonprofit and has gone back and forth in the Department over that, and when it attempted nonprofit status, the Department kicked back and said we don't believe you. We think you're a prophet. So you're seeing suspicion about for-profit operation Now, allegedly what they did was made mistakes in their graduate programs and didn't deliver what they promised to students. This is what the Department's position is.
Speaker 1:Seems like a lot for those situations.
Speaker 2:It's interesting that that itself could generate a $37 million fine. You're not talking about widespread allegations against an undergraduate population. Most of what the focus on is graduate school. That was very fascinating in itself. It kind of fits with some of the new gainful employment regulations that they promulgated. This is a department that's suspicious of for-profit entities and entities that connect with for-profit activities. You're seeing that very clearly to me anyway, and the fine is getting everybody's attention. So it's basically saying that we really mean this.
Speaker 2:And the faith thing has been interesting too, because we know that the Department may have itself some brewing issues with enforcing some of the Title IX policies that may come out which will be connected to Clary in the faith sector.
Speaker 2:And of course they have acknowledged that faith institutions can have exemption under Title IX. But they also have Supreme Court rulings on that level and I think that people notice that these big fines just happen to be leveled in a certain sector, and Liberty being of course a very visible one in that sector. So we'll see. What we believe we've seen in a leaked report is that the Department was concerned with persistent underreporting and perhaps a culture of non-compliance of some kind. But I want to generalize this because the Department has been telling people this that the sincerity in the pumpkin patch matters. What's the culture, what's the intention? And I think this department is very concerned that some people fluff off compliance obligations and don't take them seriously at a culture level and that when they see that Systemically in a academic culture, they now have shown an intention to out it and punish it.
Speaker 1:So is DOE another one of those federal departments that will be making future decisions based on a political bias, or should I say based on whatever party is in power.
Speaker 2:I Can't say this clear enough that this transcends political dimension. Remember Betsy DeVos crucified Michigan State, and I think we're gonna see something very similar from the Biden administration. So you know, obama, trump, biden it you get the same basic energy out of DOE, which is if we see that we feel that you aren't committed to Protecting students and reporting. You know we'll overlook technical violations to a certain extent, but when it's part of a culture, you can expect a report that you'll never forget and a fine to go with it.
Speaker 1:So how do these fines compared to years past?
Speaker 2:I've got to say that the kinds of fines that they're handing out now are starting to look like the types of fines that you potentially see in Banking and regulatory industry. Yeah, you know this is which just, I think is throwing people for a loop. You know they're seeing a level of finding that's going up in order of magnitude, and deliberately so, to levels that would be more consistent with Commercial. You know, securities, regs, violations, these kinds of things, and this now gets the attention of boards. The management of higher education is being put to the test and former president Trump just announced let's have a free national university and tax other institutions to have that, and he's proposing a management restructuring of the first order.
Speaker 1:The Trump proposal that Peter is referring to is to develop a nationwide Online university that would directly compete with the traditional academic structure that's been and Still is in existence today. And although it's labeled a political statement, the Trump plan does resonate with many Americans, who feel that higher education today is too costly, teaching with too much political influence and Creating a softer next generation of students.
Speaker 2:You'd have a federal government education entity competing directly with the rest of the industry, state and Non-state institutions, and taxing them to do it. If that happened, I don't think that proposal is terribly likely to come to fruition. But what it signals is the same energy. Is what's happening at the top? Do we trust institutional leadership on these issues?
Speaker 1:and how likely are they to collect that 37 million dollars as an example?
Speaker 2:You can fight it, but you have to be careful when you fight fines. It can be like quicksand you can get in deeper. I don't think that the department will anxiously walk back the number and and then you have to realize that there's cost associated with that too. You know, I'm aware that Liberty, for example, has gone out and hired an expensive law firm to do an internal Investigation and that'll cost a lot of money. Now it's it's the number that the government throws at you is just one, and then it, you know, these things can be litigation paid to. So if you feel like, well, hey, you know, I think something happened to me at one of these schools and it wasn't reported, I'm gonna call local lawyers and see if I have a lawsuit. So it tends to bring in collateral issues.
Speaker 1:I'm wondering about something which is the new Title IX regs, which are yet to be released and long overdue. Is DOE backing?
Speaker 2:off Title IX. The department has been enforcing Title IX related to Clary, of course with a clear eye towards remedying cultural issues. In fact, the department, in the most recent drop that I saw, used a word that I'd been using in some of my training, talking about impacted individuals. In other words, you can't just resolve a problem between two people that have a dispute. You've got to think about who's been impacted by this and make sure the remedies go there.
Speaker 2:This, I think, is the future that the department sees, is they see more required culture, climate work and prevention type efforts to try to reduce risks to students. I think it's going to become a bigger part of the regulatory enforcement and the culture of it. This is a new landscape. Let me add something to that too. Which I think is actually really important is that Betsy DeVos broke ranks to some extent when she fined Michigan State with a report that called people out specifically.
Speaker 2:What I'm detecting that may happen with Liberty is that you may get a report that either calls people out specifically or, shall we say, is readily identifiable as to whom they are referring.
Speaker 2:The idea that this isn't just an institutional scarlet letter but that individuals may get the scarlet letter personally, that's a big step.
Speaker 2:In some ways, motivating is fine, because that tags you then for the rest of your career. Oh, you're the person in the report from the department of Ed. It's more consistent with how court cases operate, because court cases you have witnesses and defendants, and so you're going to see a lot of specific recitation about Eric Seaborg did this or Eric didn't do that. You get used to the fact that if you're in a court case, they're going to call you out by name, but historically, when the department has fined a recipient, they find the recipient and they tend to talk fairly abstractly about this was done, this wasn't done, but they don't say Eric did this or didn't do that. That's where things are starting to change. We're starting to get this is getting a little more personal. People are going to notice that, along with the big money number, they're going to be like wait a minute, this can be, and I think this will definitely get the attention of presidents and boards.
Speaker 1:You made statement earlier and, of course, kind of brought us thinking back to history. But the fact that this has gone over Republican White Houses, democratic White House, it doesn't matter. It just seems like. It almost seems like a third party in a sense. You've got this force in there.
Speaker 2:From what you're indicating, it's not going to let up based on an election change or anything like that you know the Supreme Court might jump in we talked about that Loper-Bright case that's out there and they might trim the sales on the Department of Education, but it's not going to stop. The root energy which I think will find its way, no matter what, is that most Americans just don't trust higher education. You know, when you see violence, like with Gene Cleary, you know rape and murder in your residence hall, I don't care if you're red, blue or purple, everybody's going to jump up about that. We're getting a message from some states that some Americans and some states support abortion rights, perhaps contrary to what the Supreme Court has iterated recently. And are we going to see the Department of Ed react to those numbers and say, when we put our Title IX reproductive freedom rules out, we may start finding people if they don't come into compliance. And so you want my prediction in the big 2024, fine, it's going to be reproductive rights?
Speaker 1:So my question now is do you think the American public is taking their concerns about higher education to the ballot box?
Speaker 2:I can see, you can see it lining up. A Democrat administration could say these are numbers that we can use as part of a political strategy in 2024. Governance and management are the next big thing.
Speaker 1:So, getting back to DOE, can they keep up with this pace that they've now set, with the amount of fines that they've now put out there?
Speaker 2:You know, one of the things that they're struggling with with Title IX is there were so many comments that overwhelmed with that, they don't they have to read all of them and comment on them and it's just an overwhelming exercise.
Speaker 2:So I think that you've got both a department that wants to move forward but may not have the staffing to do everything they will. So you know, one way you get attention is you draw attention to what you can. I think 2024 brings an emphasis on prevention and, with that mentality of gathering information, acting on the information and, most of all, sincerity in the pumpkin patch, demonstrable sincerity as opposed to the low vibe of compliance which, Eric, you know from your M work is let's just check the box and get this off my desk. I mean, the lowest vibe is let's make it look like things are good when they're not. The circus is great, but actually the clowns are quitting and the elephants are angry. And they want something better from us intentionality. They want us, they want us to care about our customers and this stuff and they want to see us putting that kind of energy and those kind of people towards those kinds of tasks.
Speaker 1:I hate to keep harping on this issue of lawyers, but isn't this where we would benefit as an industry in higher education, by having more legal people on campus?
Speaker 2:When the big issue with your industry is trust by your consumers, in the society that support you. There's a paradox of bringing lawyers in, because it would appear that if you want to build trust, the last thing you do is lawyer up. That often goes exactly. But see, I come from a different time and space. Gandhi was a lawyer. Bobby Kennedy was a lawyer. And what did Bobby Kennedy say? He said the cure for the mindless menace of violence is education. Here's a lawyer. His name is on the Justice Department. He was preaching compassion. Dr King was not a lawyer. He should have been. The guy had a natural instinct for the spirit of the law, and that's what we have to reclaim and connect to the spirit of higher education. The best of both worlds together, I think in 2024, this is what Americans are going to be looking for from their higher ed institutions. Can you lead us to the promised land?
Speaker 1:Well, it's been interesting to hear your insights, peter, as always, on the what I'll call the three C's Cleary, compliance and Cost. It's been a year since we've been together. Our next episode we'll pick up with a show that launched these podcast episodes one year ago a recap of 2023 and what is ahead in 2024. So we hope you will tune in and listen and, as always, your feedback is greatly important to both of us. Thanks again and have a great rest of the year.
Speaker 3:Higher education renaissance is produced by Eric Seaborg. Technical production by NC1R Studios. Artwork by Gingee Productions. We welcome your comments or program recommendations for future episodes at ericseaborg at gmailcom and thank you for listening.
Speaker 2:Next time we meet, come and know me better, man.
