S. Daniel Carter
The emergency notification requirement added to the Jeanne Clery Act in 2008 is much more than a quicker version of the longstanding timely warning requirement that has been a part of the law since it was first enacted in 1990.
In fact, in many cases there may be no practical difference in the expected timeframe — especially as envisioned by campus community members. In many cases, however, the circumstances under which colleges and universities must issue notifications are far different than for warnings as is the scope of their dissemination.
Emergency Alerts Are Triggered by a Broad Range of Threats
Timely warnings are triggered when an institution determines that a crime for which it must report statistics — such as a homicide, sex offense or robbery — presents a serious or continuing threat to students and employees. This is determined by one or more officials who should be pre-identified in the institution’s annual Clery Act report.
The crime must have been reported to a campus security authority — such as campus police or security, or an official with significant responsibility for student and campus activities like a dean of students — or local police. It must also have occurred on campus, on immediately accessible public property or at a non-campus location, such as a Greek house or remote classroom. Each report must be evaluated on a case-by-case basis. Every “Clery crime” must be evaluated to determine if a warning should be issued.
Emergency notifications are triggered by a far broader range of potential threats — any significant emergency or dangerous situation involving an immediate threat to the health or safety of students or employees on the campus, but not the other Clery public property or non-campus areas. This could overlap and include a Clery crime such as a shooting, but it also covers crimes not reportable under Clery as well as non-criminal incidents, such as an outbreak of a communicable illness, an impending weather emergency or a gas leak. Notifications are to be issued without delay upon confirmation of the emergency by responsible authorities pre-identified by the institution in their annual Clery Act reports.
Timely Warnings Must Reach the Entire Campus
Because the nature of criminal threats often is not limited to a single location, timely warnings must be issued in a manner likely to reach the entire campus community. So a series of burglaries occurring in one residence hall, for example, must be shared with the entire campus in case the burglar decides to strike another location on campus next time.
Emergencies, however, may be far more localized, therefore notifications may also be tailored exclusively to the segment of the campus at risk. A chemical leak in a science lab may only threaten those on the floor of that particular building where the lab is located, so the notification may be shared with only that segment of the campus population. If the risk expands, such as if the chemicals escape into other parts of the building or outside the building, then the notification should also expand to include the new areas being threatened.
Some of the channels used for issuing both warnings and notifications will likely be shared — such as text messaging, E-mail and reverse-911-type phone systems — while other channels are more likely to be used by one or the other. Flyers, when used in conjunction with other channels, are still considered effective for timely warnings but would likely be insufficient for an emergency notification. A fire alarm would make an effective notification in case of a fire or environmental threat requiring evacuation but might not be as effective for conventional criminal activity. Each institution should select and disclose in its annual Clery Act report the channels that will be used for each type of disclosure. The full range of options for each should be clearly disclosed.
There Are Some Exceptions to the Requirements
Each requirement has an exception that excuses institutions from issuing timely warnings or emergency notifications, but they work very differently. Crimes that would otherwise be reportable but are reported to a licensed mental health counselor or pastoral counselor — in the context of a privileged (confidential) communication — aren’t subject to the timely warning requirement. Emergencies where issuing a notification would compromise efforts to assist a victim, contain the emergency, respond to the emergency or mitigate the emergency aren’t subject to the emergency notification requirement.
These are the only exceptions. In both cases if the circumstances change — the crime is reported to a covered campus official outside the context of a privileged communication or the response to the emergency would no longer be compromised by a notification — then the exemptions no longer apply.
There are some circumstances — such as an active shooter situation with victims on campus — that would fall under both the emergency notification and timely warning requirements. In these cases, if an institution follows its established emergency notification procedures and issues a notification, campus officials need not also issue a timely warning for the same circumstances. They must, however, provide adequate follow-up information to the community.