Timely Warnings: What, When, Why, and How

Timely Warnings: What, When, Why, and How
Saul Ewing Arnstein & Lehr's Higher Education Highlights Summer 2019
Candace R. McLaren
Saul Ewing Arnstein & Lehr's Higher Education Highlights Summer 2019

On April 30, 2019, two students were shot to death while attending class at UNC Charlotte.  CNN reports that, in the year since the February 2018 massacre at Stoneman Douglas High School, there has been one shooting every 11.8 days.  Notably, that number only accounts for K-12 schools; not for the hundreds of college and university campuses nationwide where it has become increasingly common for gunfire to erupt.  As a result, school administrators must become adept at managing both the tragic and the unpredictable. 

Regardless of experience, thinking and acting strategically in the midst of a crisis is difficult.  Planning and preparation are key.  Not only will that preparedness save lives, it will ensure that, when the dust settles and your emergency response is evaluated -  and it will be - the protocols and policies that you carefully contemplated and drafted were properly implemented.

One area ripe for after-action review involves Timely Warnings (“TWs”).  If there is one thing that my time as the Department of ED’s Clery Act Compliance Director taught me, it is that TWs are the lowest of the Clery Act’s low-hanging fruit.  Those decisions – to issue or not to issue a TW – are, by far, the easiest for government officials to Monday-morning-quarterback, and often serve as the quickest path to findings of Clery Act violations.  With the benefit of time, hindsight, and documentation, it takes relatively little effort for ED officials to dissect a disaster in order to determine what was done well and what should have been done differently. 

TWs may be issued for Clery-reportable crimes, occurring on Clery geography, that have the potential to pose a serious, ongoing threat to the health and safety of a campus community. 34 C.F.R. § 668.46(e).  As such, the key to compliance is to determine:  (1) when a crime is TW-eligible; and (2) whether the circumstances surrounding that crime make it TW appropriate.  2016 Handbook at 6-12. And determining the appropriateness of a TW is about balance.  Many schools fall into the trap of believing that all that is required is the assignment of the task.  What they fail to realize is that compliance, or lack thereof, will be determined by the details.  So “Dan” may be the person responsible for making TW decisions, but who is to contact Dan to alert him that a Timely Warning-eligible crime has been committed?  How is that contact to be made, and within what period of time?  What information is to be relayed to Dan?  What factors are to determine his assessment?  Is Dan to draft and disseminate the warning as well?  And what if Dan is sick, on vacation, or otherwise unavailable?

At the opposite end of the spectrum are those schools that make the mistake of believing that “more is more.”  In other words, rather than trying to determine the “right” circumstances under which to issue TWs, they issue TWs for everything.  Car keyed by an ex-girlfriend?  TW.  Fist fight between roommates?  TW.  Rival team’s mascot theft?  TW.  What these schools fail to realize is that the unnecessary issuance of these warnings can lead to violations and fines just as the failure to issue necessary TWs can.  2016 Handbook at 6-13, 6-14. Moreover, inundating your campus community with unnecessary warnings puts it at even greater risk, because, when a true emergency arises, no one will be inclined to pay any attention. 

So what should you do?  Before an emergency strikes, assemble a working group to review and discuss your TW policy.  Include members of your Police/Campus Safety Department, your General Counsel’s Office, your Clery Act Coordinator, and your school’s administration.  And make sure to discuss and determine the following:

  • What TW training is being provided to your police/campus safety officers, and how often?
  • When a TW-eligible crime occurs, what information do you want officers to gather and relay?
  • Who is to decide whether to activate your TW protocol, and is that decision to be made by committee, or by one individual?
  • What does your TW protocol consider “timely”?  (2016 Handbook at 6-12)
  • Once the decision to issue a TW is made, who is to draft it and how?
  • What system(s) will be used to disseminate it, and what testing of and training on that system is conducted?
  • Is the TW reviewed before dissemination, and, if so, how and by whom?
  • Once a TW is issued, where will it be saved, how, and by whom?
  • How are your school’s decisions to issue/not issue TWs being memorialized?
  • If the crime is not immediately solved, how will you determine whether follow-up warnings are necessary?