The U.S. Department of Education concluded in August that UNC violated campus safety laws for years to an extent that can’t be fully measured, including by providing inadequate systems for sexual violence victims, omitting dozens of serious crimes from annual reports, violating a federal non-retaliation provision and demonstrating a lack of administrative capability that “remains a matter of serious concern for the department.”
The conclusions are stated in a final report sent to UNC by the department’s Clery Act Compliance Division. While the University received the report nearly three months ago, interim Chancellor Kevin Guskiewicz shared it with the campus community in an email Monday evening, the same day The Daily Tar Heel and other publications reached out for comment on it.
The investigation began seven years ago and reviewed materials from 2009 to 2016, stemming from a federal complaint filed by four UNC students and former administrator Melinda Manning. Now, the scale and “significant” determinations of the investigation present UNC with potentially substantial federal fines, said Clery Act expert S. Daniel Carter.
“To read a letter by an impartial investigator that is this scathing, I think (it) sends a very clear message, and I really hope that readers take it as a call to action to continue to hold the University accountable,” said Andrea Pino, an alumna who took part in filing the initial complaint when she was a student.
The Clery Act, enacted in 1990, began as a federal statute requiring institutions to disclose information like crime statistics and security policies, said Carter.
In the time since, Carter said the act has evolved to provide “a framework for just about all aspects of campus safety.”
The education department’s final report was based on nine initial findings identified in February 2017 of UNC being out of compliance with the Clery Act over its review period. Those findings were categorized as:
- Lack of Administrative Capability
- Failure to Properly Define the Campus/Clery Geography
- Failure to Issue Timely Warnings
- Failure to Properly Compile and Disclose Crime Statistics
- Discrepancies between the Crime Statistics Included in the ASR and the Data Submitted to the Campus Safety and Security Data Analysis Cutting Tool
- Failure to Collect Campus Crime Information from All Required Sources
- Failure to Follow Institutional Policy in a Case of an Alleged Sex Offense
- Failure to Disclose Accurate and Complete Disciplinary Referral Statistics - Failure to Retain Records Needed to Substantiate Clery Act Compliance
- Failure to Include Required Information in the Annual Fire Safety Reports
The report sustained all except for one of these findings, the exception being the “Failure to Disclose Accurate and Complete Disciplinary Referral Statistics” finding.
The Clery Act division’s review of UNC began with a campus visit in April 2013 with the aim of reviewing incident reports, arrest records, and student and employee disciplinary documents. The review was later expanded to review “the accuracy and completeness of the University's crime statistics through the end of calendar year 2015,” according to the report.
The review process then comprised years of back-and-forth up to last May between the compliance division and UNC, though the report noted that “despite the department's best efforts, it proved impossible to (fully) reconcile (UNC’s) narrative response with most parts” of its file reviews.
“Well into 2019, UNC showed that it was unable or unwilling to produce an accurate, complete, fully reconciled and well-organized response to the department's initial report,” the division stated.
Similar phrasing persists throughout, with the department even stating it “has substantial reason to believe that other violations may have occurred during and after the file review period” that were not gathered or assessed.
Carter said the department’s direct language will likely play a significant role in any fine action it takes against UNC, particularly because it continues into the current year. He called the description of the University's administrative issues “one of the most blistering I’ve read in many years."
View the full Clery Act compliance review
“One of the things I’ve, for years, cautioned schools about, is making sure they thoroughly document their compliance efforts,” Carter said. “There’s nothing that frustrates the Department of Education’s reviewers more than incomplete records.”
He said a maximum civil fine penalty is required for each violent crime an institution omits from any annual report during a compliance review period. UNC’s annual security reports from 2015 to 2017 omitted four violent crimes, which would translate to a nearly $185,000 fine, with crimes omitted from the 2015 report running $35,000 per and any after that at $57,317.
While other non-violent but Clery-reportable crimes were omitted over the review time frame, Carter said the maximum fine isn't required for those. Typically, non-violent omissions result in a lesser fine amount. From the 2015 to 2017 report, UNC omitted 21 total Clery-reportable crimes.
Beyond the non-violent crime measure, fine amounts for all other violations have not yet been communicated to UNC and can’t be assumed, though Carter said “we’re certainly looking at six figures here.”
Retaliation through Honor Court
The most significant individual finding, he said, is the department’s determination that UNC violated a non-retaliation provision when it used Honor Court charges against former student Landen Gambill after she’d taken part in the federal complaint and publicly criticized the University’s handling of her and others’ sexual violence reports.
Gambill declined The Daily Tar Heel's request for comment through a colleague.
In spring 2012, she pressed charges through the Honor Court against her long-term boyfriend, who’d allegedly raped and sexually abused her. The charges were dropped on the basis of insufficient evidence.
Gambill then took part in filing the complaint with Pino, Manning, alumna Annie Clark and an anonymous female student. She told the DTH at the time that she did not “want anyone else to have to experience what I did because of the negligence of the University and their failure to acknowledge the importance of survivors’ needs.”
Soon after, Honor Court charges were pressed against Gambill, citing that her intimidating behavior — going public with her case — adversely affected her ex-boyfriend’s pursuits within the University.
The department stated in its final determinations that although those charges were eventually dropped, its review found that the charges themselves violated the Clery Act’s retaliation provision and had a chilling effect on Gambill.
“The department also found that the charge likely had a chilling effect on others who were closely tracking the significant number of complaints and statements of concern,” the review stated.
Due to Gambill's Honor Court charges occurring just months before a Clery Act amendment went into effect, bolstering federal guidelines on retaliation-related reviews, UNC will likely not face a fine for this incident, Carter said.
A fine also may not apply because the incident occurred more than five years ago, putting it outside the statute of limitations for violations that can be fined. Many other violations identified in the report will see the same lack of fine action applied to them, if the department's enforcement action is issued more than five years after the violations occurred.
However, Carter said in lieu of a fine, the department's final stance on the Gambill case establishes in writing a new bar for its seriousness about enforcing the non-retaliation provision.
“It is the strongest statement to date that the Clery Act Compliance Division has made that if you step forward and believe that your rights have been violated under the Clery Act, we will protect you,” he said.
Guskiewicz emphasized in his email that the University is committed to ensuring the campus and its surrounding areas are safe for all.
Guskiewicz said the University has engaged with a consulting firm focused on Clery Act compliance, Vermont-based Margolis Healy, and that reviewers from the firm would be on campus for the remainder of the week to help "assess and recommend how the University can more fully comply with" federal crime and safety rules.
"We will continue to invest in resources and training to ensure the University has the right tools and procedures to accurately prevent, respond to and report crimes, and issue timely notice of any known safety threats to the campus community," he stated.
The final Clery Act report said the University “disagreed with the finding" that its Honor Court charges against Gambill violated the retaliation provision.
Manning, who was assistant dean of students at the time she joined the student’s complaint, said she believes the University still owes Gambill an apology.
The report notes at the end of many findings that, while the violations themselves were sustained, UNC’s improvement efforts had met what the division saw as minimum requirements to comply with the Clery Act. However, it also states that some issues identified in its findings will be subjects of “the department's ongoing monitoring program.”
In Manning’s eyes, this monitoring will be essential to ensure real improvement happens, especially given the recent campus climate survey where nearly half of women in their fourth year or higher reported experiencing non-consensual sexual touching or penetration involving physical force at UNC.
“Policies are only as good as the people who implement those policies,” she said.
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