DOE finds ASU in violation of Clery Act

The Department says 'because of the consequences of a serious compliance failure,' the University should reevaluate all campus safety policies and procedures

The U.S. Department of Education found ASU in violation of federal campus safety laws under the Clery Act involving an alleged on-campus rape a survivor reported to campus police in February 2020, according to documents recently obtained and shared with The State Press. 

The Clery Group's report, signed by Clery Act Compliance and Safety Operations Senior Advisor James L. Moore III and sent to the University's associate general counsel, said based on its review, "the Department has determined that the University violated the Clery Act by attempting to place conditions on the participation of the Complainant's advisor and on the Complainant's access to information about the determinations of the disciplinary body."

The Clery Group, part of the DOE responsible for examining annual security reports and complaints, completed its report following a complaint filed in June 2020 by a sexual assault survivor and her counsel, notifying them and the University of its conclusions in April 2021. 

"Because of the consequences of a serious compliance failure, the Department strongly recommends" ASU officials reevaluate all campus safety policies and procedures on a regular basis to ensure they reflect current institutional practices and requirements. 

Since the April letter was sent, ASU has been in communication with the DOE to explain its rationale behind the allegations, said vice president of media relations and strategic communications Katie Paquet. Paquet said the DOE is now asking ASU to take action on two items: more robust written rationale for final communications and that ASU ensures both parties are notified at the same time of the outcome of an investigation. The University will confirm these measures in a response to the DOE, which is due June 25.

READ MORE: ASU's sexual assault investigation processes leave survivors traumatized, often without justice

The letter states ASU advised the complainant she send an email request for information about the disciplinary proceedings involving her case and would need to attend a meeting. 

When the complainant asserted her rights to the information with the assistance of outside counsel, ASU officials and the general counsel required her to sign a non-disclosure agreement. Once the written information was released, there was no provided rationale for the outcomes reached or information about how to appeal.

The conclusions of the review state the University cannot place conditions of any kind on a victim or their advisor, including the execution of a non-disclosure agreement as a precondition to receiving information about a case.

The complaint claimed the University had failed to provide an impartial disciplinary process, and documents created along the way were not distributed to appropriate parties.

It also alleged the University failed to explain delays in the disciplinary process and failed to show written explanations of the complainant's rights, options, available accommodations, protective measures and instructions on how to receive other types of assistance. 

The complaint asserted there was no timely warning issued to the student body in response to the reported offense in February, something the University has done in the past.

In an email statement, Jasmine Lester, an ASU alumna and the founder of Sun Devils Against Sexual Assault, said because of ASU's history in sexual misconduct cases, "it is unlikely they will follow the Department of Education's recommendations considering they won't even do what's required."

"ASU must immediately terminate these practices and eliminate any policy, procedure, or practice that" requires a party in a disciplinary case to request a copy of the determinations of a disciplinary body, requires they be present to receive it or requires a party to execute a non-disclosure agreement to obtain it, according to the letter.

Exemptions due to the Family Educational Rights and Privacy Act in the disclosure of the conclusions of disciplinary proceedings have no bearing in cases such as this because the Clery Act always requires the accuser and accused be notified at the same time and in writing of the results of such proceedings. 

The DOE requested the University update its policies and procedures in a revised version of the 2020 Annual Security Report by May 17 and sent directly to all enrolled students and current employees within three days. The DOE then extended the deadline to June 25.

"ASU immediately engaged with the DOE about the alleged violations which related to ASU's practices for delivering notice of the outcome of disciplinary investigations, rather than the handling of any particular matter," Paquet said in an email. 

The University had previously delivered determinations of disciplinary hearings in person "to provide real-time support to involved students," Paquet said, but the process has been changed so parties will learn of conclusions at the same time. 

In addition, Paquet said the University had previously permitted each party to review the investigative report without a reiteration in the determination letter. Paquet said the University "will continue to conduct the investigation review, while also providing additional detail in the final determination letter."

"It is imperative that ASU ensure that all aspects of the disciplinary processes are carried out in a prompt, fair, and impartial manner going forward," the DOE writes. "Doing so will eliminate unnecessary delays in the process and will help to ensure that the rights of parties are not compromised by the process itself or by other factors beyond the parties' control."

Lester said the Campus Assault Advocacy, Resources & Education Center proposal includes a policy analyst who would be dedicated to ensuring sexual violence prevention efforts, investigations and support services, which all align with local and federal requirements.

READ MORE: ASU explores Family Advocacy Center as students push for CAARE Center

"If implemented as proposed, the CAARE Center can help ensure that ASU complies with the Clery Act and avoids future violations of students' rights," Lester said. "However, ASU compliance ultimately depends on whether President (Michael) Crow and General Counsel continue to tolerate the mistreatment of ASU students."

The Department reminded the University "that its positions are not, in any respect, new."

"To the contrary, these conclusions are grounded in the applicable statutes and regulations and are also consistent with longstanding guidance that is reflected in published determinations dating back to at least 2004," the Department writes. 

Clarification: The story was updated on June 16 at 3:50 p.m. to clarify a sentence that did not explain the full nature of what the Department of Education found ASU to have violated. The story has also been updated to reflect the nature of the sexual assault as an allegation, since it has not been through the criminal process. The story was updated again June 16 at 6:42 p.m. to include additional information from an ASU spokesperson.


Reach the reporter at pjhanse1@asu.edu and follow @piperjhansen on Twitter. 

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