George Mason
Law Review

Exclusion of Race of Suspect from Clery Act Campus “Crime Alerts”: Results of a Survey of Clery Act Reporters

Jona Goldschmidt & Christopher Donner
Volume 28
Issue 3


The Jeanne Clery Disclosure of Campus Security Policy and Campus Crime Statistics Act of 1990 (“Clery Act”)120 U.S.C. § 1092(f). The Clery Act is implemented by US Department of Education regulations. See 34 C.F.R. §§ 668.41(e), 668.46 (2019); see also Clery Act Policy, Clery Ctr., (providing a history of the Clery Act). requires campus safety authorities at schools receiving federal funds to collect and annually produce statistics regarding crimes occurring on their campuses.2The information to be disseminated under the Clery Act “shall be produced and be made readily available upon request,” but institutions “shall on an annual basis, provide to all enrolled students a list of information that is required to be provided” in a mandated “campus crime report.” 20 U.S.C. § 1092(a). The information, therefore, is not published as such. The rule promulgated by the US Department of Education (“DOE”) under the Clery Act requires schools to issue “timely warnings” of campus crime (“Crime Alerts”) to the campus community.334 C.F.R. § 668.46(e) (2019). These are intended to “aid in the prevention of similar occurrences.”4Id. The DOE Handbook for Campus Safety and Security Reporting (the “Handbook”) states that because “the intent of a warning regarding criminal incident(s) is to enable people to protect themselves[,] . . . a warning should be issued as soon as pertinent information is available.”5Off. of Postsecondary Educ., U.S. Dep’t of Educ., The Handbook for Campus Safety and Security Reporting: 2016 Edition 6-12 (2016) [hereinafter 2016 Handbook]. The warning “should contain information about the type of criminal incident that has occurred, although you can provide additional information as it becomes available.”6Id.

The issue of whether to include a suspect’s race in Crime Alerts has arisen at many universities. Some students argue that using race to describe suspects unjustly targets persons of color, particularly those of African American descent. For these students, race descriptors in Crime Alerts is a form of racial profiling or perpetuates racial stereotypes. In response, some universities have seen fit to either (1) exclude race altogether from their Crime Alerts; (2) include it if the local police department report includes it; or (3) use alternative descriptors, such as “light,” “medium,” or “dark” complexion.7See William V. Pelfrey Jr, Steven Keener & Michael Perkins, Examining the Role of Demographics in Campus Crime Alerts: Implications and Recommendations, 8 Race & Just. 244, 256 (2018). Additionally, some institutions have not strayed from the use of a race descriptor so long as additional individualized descriptors are available.8See id.

To further understand this issue, we conducted a national survey of campus safety departments’ designated Clery Act reporters, inquiring about their departments’ policies regarding the inclusion of race in Crime Alert suspect descriptions. The survey revealed how campus safety directors or university administrators implement the timely warning requirement: Who drafts the Crime Alerts? Who makes the decision regarding inclusion of race in suspect descriptions? Is there a written or unwritten policy on the matter? Was the question ever debated among university stakeholders? On what basis is the decision made? These and additional questions were posed in the survey, illuminating the race-inclusion decision.

We stress at the outset that we do not attempt to prove any causal relationship between a given race-inclusion policy and suspect apprehension or campus crime rates. Our purpose is to gain a deeper understanding of the delicate balancing act institutions face: on one hand, trying to avoid perceived institutional racism, racial profiling, or negative racial stereotyping, and, on the other hand, complying with the Clery Act’s mandate of providing timely warnings of serious crime to the campus community so its members can protect themselves.

I.     Clery Act “Timely Warning” Requirement

The Clery Act requires that:

Each institution participating in any program under this subchapter, other than a foreign institution of higher education, shall make timely reports to the campus community on crimes considered to be a threat to other students and employees . . . that are reported to campus security or local law police agencies. Such reports shall be provided to students and employees in a manner that is timely, that withholds the names of victims as confidential, and that will aid in the prevention of similar occurrences.920 U.S.C. § 1092(f)(3) (emphasis added).

The Act does not require any specific form of warning. The DOE’s timely warning requirement regulations, which implement the Act, essentially restate the language of the statute, and specify that

[a]n institution must, in a manner that is timely and that withholds as confidential [victims’ identifying information] and that will aid in the prevention of similar crimes, report to the campus community on crimes that are . . . [c]onsidered by the institution to represent a threat to students and employees.1034 C.F.R. § 668.46(e)(1)(iii) (2019). Additional regulations cover: definitions; the annual security report; crime statistics; separate campus statistics; the school’s requirement of timely warnings and emergency notifications; crime log requirement; emergency response and evacuation procedures; missing person notification; programs to prevent dating violence, domestic violence, sexual assault, and stalking; and procedures for institutional disciplinary action in cases of alleged dating violence, domestic violence, sexual assault, or stalking. Id. § 668.46(a)–(h), (j)–(k).

Both the statute and the regulations place the duty to provide timely warnings on “[e]ach . . . . institution” within the scope of the Act;1120 U.S.C. § 1092(f)(3); see 34 C.F.R. § 668.46(e). but neither specify the individual in the institution who has the duty to draft or issue the warnings. The regulation that requires each institution to submit to the DOE an annual security report containing campus crime statistics also requires inclusion of policies on a variety of issues, including the issuance of timely crime warnings.12The regulation states: An institution must prepare an annual security report reflecting its current policies that contains, at a minimum, the following information: . . . . (i) Policies for making timely warning reports to members of the campus community, as required by paragraph (e) of this section, regarding the occurrence of crimes described in paragraph (c)(1) of this section; . . . . (iii) A list of the titles of each person or organization to whom students and employees should report the criminal offenses described in paragraph (c)(1) of this section for the purposes of making timely warning reports and the annual statistical disclosure. 34 C.F.R. § 668.46(b)(2) (2019) (emphasis added). Subsection (iii) above must be read in conjunction with the definition of a “campus security authority.” This definitional section recognizes the wide range of personnel with potential responsibility for receiving notices of campus crime: (i) A campus police department or a campus security department of an institution. (ii) Any individual or individuals who have responsibility for campus security but who do not constitute a campus police department or a campus security department under paragraph (i) of this definition, such as an individual who is responsible for monitoring entrance into institutional property. (iii) Any individual or organization specified in an institution’s statement of campus security policy as an individual or organization to which students and employees should report criminal offenses. (iv) An official of an institution who has significant responsibility for student and campus activities, including, but not limited to, student housing, student discipline, and campus judicial proceedings. If such an official is a pastoral or professional counselor as defined below, the official is not considered a campus security authority when acting as a pastoral or professional counselor. Id. § 668.46(a). It appears that the person or university unit that is charged with receiving notification of campus crime need not necessarily be the same person or unit that issues the timely warning. This variation in responsibility is reflected in our survey results.

In responding to public comments which sought additional guidance for how institutions can most effectively comply with the Violence Against Women Reauthorization Act of 2013, a DOE representative responded as follows, essentially restating the statutory language of the Clery Act: “Generally, institutions must provide timely warnings in response to Clery Act crimes that pose a continuing threat to the campus community. These timely warnings must be provided in a manner that is timely and will aid in the prevention of similar crimes.”13Violence Against Women Act, 79 Fed. Reg. 62,752, 62,769 (Oct. 20, 2014) (referencing a “continuing threat,” versus the statutory language that uses only the word “threat”).

In 2011, the DOE published the first Handbook for Campus Safety and Security Reporting (“2011 Handbook”), which contained guidance regarding timely warnings.14Westat, Diane Ward & Janice Lee MAnn, U.S. Dep’t of Educ., The Handbook for Campus Safety and Security Reporting (2011) [hereinafter 2011 Handbook]. The relevant section states:

All of us want to be alerted promptly to potentially dangerous criminal situations near our homes or workplaces so that we have both the time and the information necessary to take appropriate precautions. Apply this to your institution, and you have the concept of the “timely warning.” . . . [T]he intent of a warning regarding a criminal incident(s) is to enable people to protect themselves[.] [T]his means that a warning should be issued as soon as the pertinent information is available.15Id. at 111 (emphasis added).

The 2011 Handbook does not provide a definition of “pertinent information.” However, the section titled “Determining the Content of a Timely Warning” states:

Clery Act regulations do not specify what information should be included in a timely warning. However, because the intent of the warning is to enable members of the campus community to protect themselves, the warning should include all information that would promote safety and that would aid in the prevention of similar crimes. Issuing a warning that cautions the campus community to be careful or to avoid certain practices or places is not sufficient. You must include information about the crime that triggered the warning. Your institution’s policy regarding timely warnings should specify what types of information will be included.16Id. at 113 (emphasis added).

The 2011 Handbook also contains three sample timely warnings. The first contains no identifying information of an offender, but merely refers to reports of two possible sexual assaults using “date rape” drugs and cautions members of the campus community to be aware of this phenomenon.17Id. at 115. The second sample reports an “[a]ssault and [b]attery, constituting a [f]orcible [s]exual [o]ffense,” involving two “‘college’ age males; race unreported,” followed by a more detailed description of the offenders and their dress.18Id. at 116 (emphasis added). The third sample refers to a burglary and theft of computers from a university building and notes that “[t]he investigation into this incident has yielded photographs of two subjects that were involved in the theft.”19Id. at 117. This is followed by a list of specific characteristics (e.g., race, sex, complexion, hair, hair description, eyes, age, and clothing). For race, the sample warning states “Black.”202011 Handbook, supra note 14, at 117.

Thus, while neither the Clery Act’s statutory language nor DOE regulations require suspect race to be included in Crime Alerts, the 2011 Handbook’s sample warnings do include race where that characteristic was—in the hypothetical example—reported or evident from photographic evidence.

The revised 2016 version of the Handbook omits the sample timely warning forms appended to the 2011 version. Thus, the 2016 Handbook is devoid of any guidance or reference to the contents of the warnings with regard to suspect characteristics, race, or otherwise. Both versions of the Handbook contain a provision stating that “[y]our institution’s policy regarding timely warnings should specify what types of information will be included.”212016 Handbook, supra note 5, at 6-15; 2011 Handbook, supra note 14, at 113. It is unclear why DOE decided to remove the sample timely warning forms that included race as a suspect descriptor.

Just as this article was completed, DOE issued a notice of “rescission . . . and replacement” of the 2016 Handbook,22Press Release, Off. of Postsecondary Educ., U.S. Dep’t of Educ., Rescission of and Replacement for the 2016 Handbook for Campus Safety and Security Reporting, (Jan. 19, 2021), [hereinafter Recission]. replacing it with a thirteen-page Clery Act Appendix for FSA Handbook, purportedly because “[p]revious versions of the Department’s Clery guidance created additional requirements or expanded the scope beyond what is strictly required by statute or regulation.”23Off. of Postsecondary Educ., U.S. Dep’t of Educ., Clery Act Appendix for FSA Handbook 1 (2020) [hereinafter Clery Act Appendix]. The new document, which “is intended only to provide clarity to the public regarding existing requirements under the applicable statutory and regulatory provisions,”24Recission, supra note 22. does not add any clarification to the race-inclusion or exclusion issue.25See Clery Act Appendix, supra note 23, at 1.

We consulted federal case law to see whether it provided any additional guidance regarding the contents of Crime Alerts. Our search disclosed numerous Clery Act cases involving issues such as whether sexual harassment complaints—usually in combination with Title IX claims—are to be reported;26See Z.J. v. Vanderbilt Univ., 355 F. Supp. 3d 646, 672, 707 (M.D. Tenn. 2018) (declining to enter declaratory judgment that university policies and procedures governing sexual assault allegations violated the Clery Act, where student failed to establish Title IX claim), appeal dismissed, No. 19-5061, 2019 U.S. App. LEXIS 38959 (6th Cir. Apr. 26, 2019); Doe v. U.S. Dep’t of Health & Hum. Servs., 85 F. Supp. 3d 1, 4, 9–11 (D.D.C. 2015) (holding that mandamus would not issue to compel HHS and DOE to resolve a complaint of sexual harassment and assault committed against university student). institutions’ Clery Act compliance;27See Bagwell v. U.S. Dep’t of Educ., 183 F. Supp. 3d 109, 122, 133 (D.D.C. 2016) (holding that materials related to DOE review of institution’s Clery Act compliance are not discoverable under the Freedom of Information Act). whether the Clery Act provides for a private cause of action;28See Doe v. Vanderbilt Univ., No. 3:18-cv-00569, 2019 U.S. Dist. LEXIS 173269, at *11, *18 (M.D. Tenn. Sept. 30, 2019). and whether the Clery Act prohibits placing a notation on a student’s records regarding that student being the subject of a timely warning.29See Doe v. Weill Cornell Med. Coll. of Cornell Univ., 16-CV-3531, 2016 U.S. Dist. LEXIS 75238, at *1–2 (S.D.N.Y. June 8, 2016) (holding that the university had discretion as to whether to add a notation in the student’s record regarding the misconduct). Research discloses only one federal case relating to the contents of a timely warning, but the issue there was whether university officials were liable for the contents of an allegedly defamatory Crime Alert.30Havlik v. Johnson & Wales Univ., 509 F.3d 25, 32–34 (1st Cir. 2007) (concluding that the university, campus safety director, and general counsel (who drafted the Crime Alert) were entitled to qualified privilege under Rhode Island defamation law, finding no malice on the part of the general counsel or the campus safety director). The following language is pertinent: At the outset, it is important to note that every university is different, and each one has its own culture. Mindful of this diversity, the [Clery] Act stipulates no hard-and-fast rules but, instead, gives institutions of higher learning substantial leeway to decide how notices should be phrased and disseminated so as most effectively to prevent future incidents. Id. at 33. Thus, federal case law provides no more clear guidance to campus safety departments regarding the race-inclusion issue than does the Clery Act, DOE regulations, or the DOE’s current Clery Act compliance Handbook.

II.     Literature Review

Multiple issues surrounding the Clery Act have arisen at various institutions,31See Frank D. LoMonte, Bring Campus Crime Reports Out Into the Open, The Chron. of Higher Educ. (Sept. 17, 2012), The author, executive director of the Student Law Center, notes that, with the exception of a few states, campus safety incident reports contained in daily crime logs (as distinguished from Crime Alerts) are not accessible under state public records or open meetings laws, and that the descriptions of the incidents are too vague. Id. The author argues that continued confidentiality of these records should be addressed by “more than a change in the law,” but through “a change in mentality—a change that puts concern for public safety, and for the public’s confidence in the legitimacy of the justice system, ahead of image control.” Id. some of which have aroused students’ protests. In 2015, The Chronicle of Higher Education (“Chronicle”) published a piece describing a number of alleged racial profiling incidents on three campuses.32Peter Schmidt, Campus Police Department Struggles with Issues of Race, The Chron. of Higher Educ. (Dec. 17, 2014), The article notes that “[s]everal colleges’ police forces have also been the subject of recent controversies stemming from allegations they had engaged in racial profiling.”33Id. The author reports that at one university, administrators have stood behind their campus safety officers by “refusing demands from black faculty, staff, and student organizations that the campus police stop routinely publishing the race of suspects in campus crime alerts.”34Id.

The author notes that some groups complained of “a surge in campus crime alerts that described suspects as black males,” which “had led to a rise in racial profiling . . . [and] call[s] for the university to remove the suspects’ race from crime alerts or give a written justification for providing such information.”35Id. A university official said that it was their policy to use racial descriptors in Crime Alerts: “[A] well-informed community is an asset to public safety, . . . and that involves providing as much information as we can to our community.”36Id. A subsequent Chronicle article described the costly burden of Clery Act compliance, noting that the DOE Campus Handbook was “vague in key spots,” including the timely warning requirement. Lee Gardner, 25 Years Later, Has Clery Made Campuses Safer?, The Chron. of Higher Educ. (Mar. 9, 2015), The author noted that a recent congressional task force had recommended that campus police “use their best judgment as to ‘timely warnings’ and simplify[] or eliminat[e] the reporting of statistics from ‘noncampus’ locations, such as study-abroad programs.” Id. However, the institution reversed its policy about a year later. The university president announced:

To address this complex issue, we are changing our approach on the use of suspect descriptions in Crime Alerts. Moving forward, the University will only use a suspect description when there is sufficient detail that would help identify a specific individual or group. This is a change from current practice, which is to include a suspect description regardless of the level of detail provided. The Chief of Police and I will decide whether to include a suspect description in a Crime Alert on a case-by-case basis.37Eric Ostermeier, University of Minnesota To Stop Using Race in Crime Alert Suspect Descriptions, Smart Pol. (Feb. 25, 2015), (quoting University of Minnesota Vice President Pamela Wheelock’s statement); see also Scott Jaschik, Race and Crime Alerts, Inside Higher Ed (Feb. 26, 2015),

Two more Chronicle articles regarding the Clery Act and campus police appeared in 2016. One decried the “overpolicing” of college campuses, noting the “intense public scrutiny” regarding racial profiling, campus safety, excessive force, and responses to shootings.38Craig T. Greenlee, Safety Zone: Issues Surrounding Policing on Campus Raise Questions About Security and Profiling, Diverse, at 17, 17, 19 (2016) (a Chronicle magazine). A quote included in the article from the president of the International Association of Campus Law Enforcement Administrators is relevant to campus safety generally. He referred to the common misconception that

college campuses are isolated and insulated[,] and that things don’t happen there . . . If you go to almost any campus in the country, there are no walls or fences, and no checkpoints to get on and off campus. Anything that can happen in that neighborhood or region can come right on campus.39Id. at 18. One response to the University of Minnesota’s decision to stop using race descriptors in Crime Alerts stated: A suspect description is not meant to target a specific race, it is only meant to describe the person that committed the crime. That being said, I do not see the point of protecting the criminal[’]s identity by leaving their race hidden. In an attempt to please the African American and African Studies, Black Faculty and Staff Association, Black Graduate and Professional Student Association, Black Men’s Forum, Black Student Union and Huntley House for African American Males, you are actually making race a bigger issue than it should be. If this is the way you wish to deal with the problem, then gender should be left out of the description as well. Also, maybe hair color because if a suspect with brown hair is mentioned, then anyone with brown hair might feel, as you say, “unsafe and distrusted[.]” Kassie, Comment to University of Minnesota To Stop Using Race in Crime Alert Suspect Description, Smart Pol. (Feb. 27, 2015, 5:23 PM) (emphasis added),; see also Kyle Borowski, Race, Ethnicity No Longer Used in DPS Crime Alerts, Brown Daily Herald (Sept. 7, 2016), (“Racial profiling is certainly a very legitimate issue for a campus to be concerned about . . . But if the point of these reports is to help identify suspects, I’m not sure it makes much sense to exclude race from the description.”).

The other article regarding Crime Alerts arose from a University of Iowa incident involving a hate crime committed against a Black student in an off-campus bar; the student was allegedly assaulted by three White males.40Fernanda Zamudio-Suarez, Timing of U. of Iowa’s Alert to Students of a Possible Hate Crime Fuels Racial Tensions, The Chron. of Higher Educ. (May 5, 2016), The university’s campus safety department issued a Crime Alert three days later but faced “fierce criticism” because it was “unacceptably delayed.”41Id. Students said the delayed Crime Alert “highlighted greater problems of race relations and inclusion on a campus where some African-American students have already said they feel misunderstood.”42Id. The delay was caused by referral of the victim to campus police by city police, and vice versa, but also because, according to a university administrator, “the university did not have enough information about the incident to issue an alert before then.” Id. This article points out that concerns about “racial-climate issues” on campus extend nationwide.43See id. Some institutions “have come under fire for issuing campus alerts with insufficient information. At Louisiana State University . . . a campus-crime alert describing a potential suspect as a ‘black male wearing a dark hoodie’ sparked student protests for its vague and potentially polarizing language.”44Id. The article does not indicate whether or how many other individualized suspect descriptors were provided in that Crime Alert.

Consultants to universities regarding Clery Act compliance have not addressed the race-inclusion issue.45See generally Dolores Stafford & Michael M. Debowes, Issuing Timely Warning Notices for Non-Stranger Rapes: Are You in Compliance? Stanley (2015), The authors address the non-reporting at some institutions of non-stranger sexual assaults. Id. at 3. According to the authors, institutions may not “protect their image by electing not to shine a light on these crimes.” Id. at 8; see also Lindi J. Swope, Writing Effective Incident Reports for Clery Act Compliance: Key Components for Stakeholders, 2018 J. Clery Compliance Officers & Pros. 26 (on file with authors). The author advocates for better training of Clery Act reporters and notes that “[r]eport writers are instrumental in the institution’s Clery compliance program . . . [I]f they are not sensitive to the importance of documenting all pertinent facts, they are likely producing report narratives that are insufficient.” Id. at 31. Beyond the points raised in the Chronicle articles, research regarding implementation of the Clery Act is not voluminous. Studies have explored general, related issues such as college students’ fear of crime,46See Pamela Wilcox, Carol E. Jordan & Adam J. Pritchard, A Multidimensional Examination of Campus Safety: Victimization, Perceptions of Danger, Worry About Crime, and Precautionary Behavior Among College Women in the Post-Clery Era, 53 Crime & Delinq. 219 (2007). geospatial patterns of campus crime,47See Matt R. Nobles, Kathleen A. Fox, David N. Khey & Alan J. Lizotte, Community and Campus Crime: A Geospatial Examination of the Clery Act, 59 Crime & Delinq. 1131 (2013). and crime victimization as reported by college students compared to Clery Act crime data.48See Joseph H. Gardella, Corey A. Nichols-Hadeed, Jeanna M. Mastrocinque, Jennifer T. Stone, Cynthia A. Coates, Christopher J. Sly & Catherine Cerulli, Beyond Clery Act Statistics: A Closer Look at College Victimization Based on Self-Report Data, 30 J. Interpersonal Violence 640 (2014). Only a few studies have explored issues surrounding suspect descriptions contained in Crime Alerts.

In one study, Naomi M. Fa-Kaji, Shannon K. Cheng, and Professor Mikki R. Hebl conducted an experiment to investigate how reporting race may affect overt and subtle racial attitudes.49Naomi M. Fa-Kaji, Shannon K. Cheng & Mikki R. Hebl, The Impact of Suspect Descriptions in University Crime Reports on Racial Bias, 5 Pers. Assessment & Decisions 100 (2019). In their review of 237 official Crime Alerts from the University of California, the researchers did not find a relationship between the racial identification of a suspect and the likelihood that the suspect was apprehended.50Id. at 102. Curiously, the authors provided no description of how the likelihood of arrest was measured. No arrest data matched with Crime Alerts was presented, causing us to suspect the likelihood of arrest was based on the subjective views of the respondents. Moreover, the researchers conceded in their discussion that their study was correlational, not causal, “thus, we cannot make any causal claims” about the aforementioned relationship. Id. Insofar as there was a relationship between suspect race and the level of detail in the suspect description, the researchers, in coding the Crime Alerts, found that there was no difference in the level of detail between suspect descriptions that included race versus those that did not.51Id.

However, survey results from 443 US adults—reported in the same study—did demonstrate an increase in both overt and subtle racial bias towards persons, as measured by the Symbolic Racism Scale and Adapted Racism Scale developed by other researchers. The researchers compared participants who read a Crime Alert with a Black suspect to those who read one about a suspect with no racial identification.52Id. at 104–05. “[I]t is possible that providing any type of racial identifier in a crime report primes an individual to think about race and activate the stereotypic link between Black people and crime.” Id. at 105. Respondents were given a suspect description modeled after “authentic crime alerts that colleges and universities release” pertaining to a hypothetical robbery: “The suspect is described as an 18- to 25-year-old [race] male of medium build, between the heights of 5’8” and 6’1.” The suspect was wearing jeans and a grey shirt.”53Id. at 104–05. The study’s authors commented that the suspect description they provided to respondents “was so general that it is not likely to be useful in narrowing down the pool of potential suspects.”54Id. at 106. We will let readers judge whether or not they agree with this assessment.

Finally, the study concluded that omitting race from Crime Alerts “may help reduce negative bias toward Black people and other minorities on group-level measures.”55Fa-Kaji et al., supra note 49, at 106. The study’s authors do note the “tradeoffs between the potential good that crime reports with racial identifiers do compared to the harm that they may inflict in the form of increased racial bias,” suggesting it might be best to “simply notify people that a crime has occurred so that they know to be on their guard but not to focus so much on an overly broad description of a suspect that matches far too many people in the community so as to be helpful.”56Id.

In a separate study, Professor William V. Pelfrey Jr, Professor Steven Keener, and Michael Perkins reviewed Crime Alerts from a large, urban university in the United States and collected qualitative data through a series of focus groups (racial minority students, criminal justice students, faculty and staff, and subject-matter experts).57Pelfrey et al., supra note 7, at 250–51. In their review of the Crime Alerts, the researchers found that they are largely posted for violent crimes (e.g., robbery and aggravated assault).58Id. at 254–55. Moreover, suspects were overwhelmingly described as male and largely described as Black.59Id. at 255. The qualitative results revealed several themes consistent across each of the populations. Overwhelmingly, the participants endorsed the importance of promoting public safety and providing suspect descriptions that are as complete as possible.60Id. at 255–56. They said a model Crime Alert would not include demographic data for property crimes because they are unavailable. But

[i]n a personal violent crime (i.e. robbery or aggravated assault) that is several hours old, including demographic data are unlikely to enhance public safety unless there are differentiating elements that demark the perpetrators relative to the broad population. When there is an active or ongoing incident, or indicators that repeat victimization is likely, any available demographic or descriptors should be included.61Id. at 261.

However, most participants also agreed—to varying degrees—that repeated depiction of minorities in Crime Alerts can perpetuate negative stereotypes.62Id. at 256. In other words, on the one hand, when an immediate threat exists, all available information is relevant, including suspect race. On the other hand, the participants also reported that generic descriptors, which do not differentiate a suspect, may be harmful and garner fear of a specific population. But “[m]ost participants agreed that, in that calculus [of balancing public safety with community perceptions], the police should err on the side of public safety,” but be “cognizant of negative stereotypes.”63Pelfrey et al., supra note 7, at 261.

Recently, Professors Amy A. Hasinoff and Patrick M. Krueger reported the results of a non-random survey they conducted of 157 members of an urban campus in Denver. They studied the relationship between crime notifications (email versus text messages) and fear of crime, precautions taken in response, changes in anxiety about crime on campus, and related issues.64Amy A. Hasinoff & Patrick M. Krueger, Warning: Notifications About Crime on Campus May Have Unwanted Effects, 14 Int’l J. Commc’n. 587, 591–92 (2020). The study found that respondents fell into one of three groups: either “fearful,” “carefree,” or “blasé” about campus crime, and a respondent’s group affected their responses.65Id. at 594. Those in the latter two groups were largely unconcerned with crime and paid little attention to the notifications. Those in the “fearful” group were more attentive to Crime Alerts, but 63% of all respondents stated they did not always read the emails, and 36% stated they did not always read the text messages.66Id. at 598. The authors suggest that the Clery Act Crime Alerts cause unwanted anxiety among the “fearful” students, who, after receiving the Crime Alerts, would frequent the Denver campus less.67See id. at 601. They recommend reducing the threat of fines by DOE against institutions for non-compliance with Clery Act mandates so that campus safety departments can “avoid sending unnecessary messages,” and that policy makers should “reconsider the Timely Warning policy.”68Id. at 603.

The only reference to inclusion of race in Crime Alerts in Hasinoff and Krueger’s study was to narrative responses of “a couple of respondents” who were critical of the racial descriptor used in two notifications included in the survey.69See id. at 596. These respondents noted the description was “too broad” and that “any black man with that type of outfit on could be mistaken as the criminal.”70Hasinoff & Krueger, supra note 64, at 596. The authors did not indicate to which Crime Alert they were referring, but the two notifications that included a reference to a Black male (provided in an appendix) were from these short text messages: (1) “Attempted sex assault occurred on campus around 2:00 P.M. Suspect is a black male, 40s, thin build, beard, wearing a black jacket and pants”; and (2) “Report of shots fired near campus at Speer/Kalamath. Suspect described as a light skin B male, driving W Cadillac 499-PVD, left southbound.”71Id. at 607. Here, too, we will let readers decide whether the two Black male suspects’ descriptions are—as two respondents claimed—too vague to warrant inclusion of the race descriptor.

III.     Current Study

This Study builds on previous research by assessing an institution’s decision to include a suspect’s race in a Clery Act Crime Alert. This exploratory research examines data collected from a sample of campus safety directors or other Clery Act-designated reporters. We employ a variety of analytic techniques to examine the data, which allow us to investigate Crime Alert decision-making at the univariate level and examine potential relationships between variables at the bivariate and multivariate levels. We believe our data collection and analytic strategies improve upon methods used in prior research, in an effort to answer our research questions and make a contribution to the extant literature.

A.     Survey Administration and Procedure

The survey instrument was designed by the authors and was approved by their university’s Institutional Review Board. Initially, we had some difficulty obtaining from DOE the names and email addresses of campus safety directors or other Clery Act reporters.72Prior to 2016, the DOE had posted a spreadsheet on its web site with Clery Act reporters’ names and email addresses. As soon as we finished constructing the survey instrument, DOE replaced the spreadsheet with a new “tool” which required anyone seeking campus safety directors’ or reporters’ names and email addresses to search schools one by one. See Get Data for One School, U.S. Dep’t of Educ., Given that there are over 4,000 institutions subject to the Clery Act that report data to the DOE, we filed a Freedom of Information Act (“FOIA”) request for the data. The request was denied in March 2017 on the grounds that the agency would have to create a record, which it was not required to do under FOIA. In August 2018, we filed a civil action under FOIA against the DOE in the US District Court, seeking an order compelling the production of data that was not covered by any exemption to FOIA that would justify the DOE’s refusal to produce the requested data. Our computer expert submitted an affidavit to the court stating that the data could be “easily obtained” by anyone with access to the database. In the spring of 2019, the Government finally capitulated while its summary judgment motion was pending and settled the case. The Government produced the spreadsheet with the Clery Act reporters’ names and email addresses. As part of the settlement, the DOE paid our lawyer $20,000 in attorneys’ fees. Once obtained, participants were sent a recruitment email, which contained a link to the electronic survey. The link to the survey, administered via Opinio survey software, included informed consent language, and participants were able to consent by clicking a “Begin Survey” button. The data collection period lasted approximately one month—January 2020 to February 2020—and weekly reminders were emailed to the participants. A total of 4,219 emails were sent. However, we received 198 automated email replies indicating a faulty email address; thus, 4,021 campus safety directors actually received the email. A total of 812 usable surveys were returned, yielding a 20% response rate.

B.     Data

The present Study utilizes survey data of 812 Clery Act reporters. As noted above, “institutions” are responsible for Clery Act compliance.73See 20 U.S.C. § 1092(f)(3). Neither the Act nor its attendant regulations specify a particular individual or a given position, such as the campus safety director, as the individual whose duty it is to report crime data to DOE or to issue Crime Alerts. Thus, there was great variation in the positions held by the respondents.

The overwhelming number of respondents are campus safety directors. The exact number could not be accurately determined due to the variation in the respondents’ official titles. Taken from the first 20 completed surveys, these official titles include:

* Lieutenant

* Chief of Police

* Clery Compliance

* Chief of Police

* Campus-wide Safety & Security Coordinator

* Security Supervisor

* Director, Campus Safety & Compliance

* Chief of Campus Police

* Campus Police

* Chief of Safety and Security

* Chief of Police

* Director of Physical Plant

* Chief of Campus Police

* VP of Institutional Research and Accreditation

* Director of Public Safety

* Chief of Police

* Director of Facilities and Security

* Police Officer

* Assistant Commandant for Operations & Administration

* Information Security Coordinator

Given this variation, we use the terms “campus safety director” and “Clery Act reporter” interchangeably in reference to the survey respondents. But, as noted, they are not necessarily the individuals who generate Crime Alerts. Our interest, of course, was identifying the decisionmakers of the race-inclusion issue.

Almost one-half of respondents (44%) indicated the campus safety director at their institution decided the Crime Alerts race-inclusion issue, while at others it is administrators (33%) or others (23%) who decide the question. Asked to describe their selection of “Other,” they provided the following sample of responses:

* Local Law Enforcement

* Administrative Support Assistant

* Collaboration Between Administration and Campus Safety

* Consultant’s Advice Re: “Best Practice”

* Attorney General’s and Prosecutor’s Guidelines Govern

* Chief of Police, VP for Safety and Operations, General Counsel, in consultation with Office of Institutional Equity and the Diversity and Inclusion Officer

* Clery Administrator

* Campus Safety, Student Development, and Campus Leadership

* College President

* Crisis Management Team

* Campus Safety in Consultation with University Committees

* General Counsel, Chief of Campus Safety, Communications Director, Title IX Office, Student Diversity Officer, Dean of Students, Diversity Office, with final decision made by Campus Safety Chief and General Counsel

Thus, campus safety directors make up a plurality of individuals who decide the Crime Alerts’ race-inclusion question. But administrators and other forms of decision-making (i.e., group decision-making) combined constitute a slight majority of decision-making models.

The sample of respondents averaged fifty-two years of age, with ages ranging from twenty-one-to-seventy-eight-years-old. The majority of the sample was comprised of White (74%) males (58%). The modal education level was a post-baccalaureate degree (48%), and the modal length of time as their university’s campus safety reporter was “1-5 years” (48%). The respondents were split evenly among four-year academic institutions (32%), two-year academic institutions (33%), and vocational or religious institutions (33%). Lastly, the respondents represented institutions from forty-eight states across the country, plus Washington, D.C., and US territories. More specifically, the modal category for an institution’s region74See Census Regions and Divisions of the United States, U.S. Census Bureau, was South (37%), followed closely by Midwest (24%) and West (21%). See Table 1 for a sample of these descriptive statistics. Thus, campus safety directors make up a plurality of individuals who decide the Crime Alerts’ race-inclusion question. But administrators and other forms of decision-making (i.e., group decision-making) combined constitute a slight majority of decision-making models.

Table 1: Sample Descriptive Statistics

Variable Mean/Percent Standard Deviation Min. Max.
Age 52.06 10.60 21.00 78.00
       Male 58.0
       Female 41.4
       Other 0.6
       White 74.4
       African American 8.1
       Hispanic or Latino/a 8.7
       Asian 2.6
       Middle Eastern 0.7
       Native American 0.9
       Multiracial 2.8
       Other 1.8
       High School or GED 3.2
       Some College 11.2
       Associate’s Degree 7.4
       Bachelor’s Degree 30.5
       Professional or Graduate Degree 47.7
Length of Service
        Less than 1 year 4.7
        1-5 years 47.5
        6-10 years 22.2
        11-15 years 11.2
        16-20 years 7.0
        More than 20 years 7.4

C.     Variables

Two dependent variables are used in the analyses. The primary dependent variable, Race Included, is a dichotomous variable in which respondents were asked, “Does your written or unwritten policy regarding the information which should be included in Crime Alerts include the race of the suspect if it is known?” (0 = No; 1 = Yes). The secondary dependent variable, Race Case-by-Case, is a follow-up dichotomous variable in which respondents were asked, “If your institution does not have a written or unwritten policy regarding the inclusion of race of the suspect in Crime Alerts, is it included on a case-by-case basis instead?” (0 = No; 1 = Yes).

Five independent variables are also used in the analyses. Formal Policy represents a dichotomous variable in which participants were asked, “Does your institution have a formal Crime Alerts policy covering the information which should be included in those alerts?” (0 = No; 1 = Yes). Race Debated represents a dichotomous variable in which the respondents were asked, “Has the question of whether or not to include the race of the suspect in Crime Alerts ever been discussed or debated by your department or your institution’s administrators?” (0 = No; 1 = Yes). Decision Maker is a multinomial variable in which the participants were asked, “Please select from the following list the position of the individual who made the decision to include or not include the race of the suspect in your Crime Alerts?” (1 = This was my decision as a campus safety director or officer; 2 = This was a decision of an administrator of my institution; 3 = Other). This variable was recoded into two dichotomous variables, with “Director’s Decision” serving as the reference category. Institution is a multinomial variable indicating the participants’ type of educational facility (1 = Four-year university or higher; 2 = Two-year college only; 3 = Vocational; or 4 = Religious school). This variable was recoded into three dichotomous variables, with “Four-year university or higher” serving as the reference category. Lastly, Region is a multinomial variable indicating the institutions’ regional location (1 = West; 2 = Midwest; 3 = Northeast; 4 = South; 5 = D.C./Territory). This variable was recoded into four dichotomous variables, with “West” serving as the reference category.

D.     Analytic Technique

The analyses herein proceed in three main steps. Descriptive statistics are reported to give an overall picture of Clery Act reporting practices among the respondents’ institutions. Bivariate analyses, in the form of chi-square tests, were performed in order to determine if statistical relationships existed among the independent and primary dependent variables. Lastly, a multivariate analysis, in the form of a logistic regression model, was estimated in order to establish the predictive utility of the independent variables on the primary dependent variable, while controlling for other variables.

IV.     Results

The survey data reflect wide variation across institutions regarding the locus of their Crime Alert race-inclusion decision-making. Institutions are divided almost equally between those permitting the campus safety director to decide the question, and those permitting one or more administrators individually or with group consultations to decide the question. Often included in the group-decision-making models are diversity officers.

Frequency analyses of the main variables of interest are presented in Table 2. The respondents represented four-year universities (32%), two-year colleges (33%), and vocational schools (33%), with a small number from religious schools (2.6%). These institutions were primarily in the South (37%), with fewer schools in the Midwest (24%), the West (21%), and the Northeast (15%). Interestingly, while 71% of the survey participants indicated that their institution had a formal policy covering the information that should be included in the alerts, only 38% indicated that the race of the suspect (if it is known) is included in such written or unwritten policy.75The fact that 71% of respondents stated their institution has a policy regarding the contents of Crime Alerts could be interpreted to mean that 29% of respondents’ institutions are not in compliance with the Clery Act regulation requiring that annual security reports include “[p]olicies for making timely warning reports.” See 34 C.F.R. § 668.46(b)(2)(i) (2019). But the content of these required policies is not specified in the law or regulations. An institution can merely state in their annual crime report the manner in which Crime Alerts are disseminated (e.g., emailing, texting, web site notice, etc.), rather than their contents. For comparison, a question asked respondents to specify what additional suspect characteristics are included in their university’s Crime Alerts. The results indicated that the vast majority of educational institutions include sex (89%), age (86%), eye color (79%), hair color (85%), facial hair (84%), body type (84%), a clothing description (87%), scars/tattoos (86%), and other characteristics (72%). According to the campus safety directors, the “other characteristics” was largely a catchall for any and all characteristics that they knew about the suspect that could aid in the suspect’s capture. This includes, among other things, photos, vehicle description, direction of travel, description of backpack/purse, height, weight, hair length, and any noticeable physical disability (e.g., a limp).

Table 2: Frequency Analysis of Key Variables of Interest

Dependent Variables Yes (%) No (%)
Race Included 37.7 62.3
Race Case-by-Case 58.9 41.1
Race Case-by-Case Categories f (%)  
Includes Race (IR) 203 (62.6)  
Excludes Race (ER) 47 (14.5)  
Race Included with Sufficient Additional Details (SD) 35 (10.8)  
No Crime Alerts Issued (NR) 9 (2.8)  
No Answer or Answer Unresponsive (NA) 7 (2.1)  
Complexion Only Included (CO) 7 (2.1)  
Race Included Only in Hate Crimes (HC) 5 (1.5)  
Certain Unstated Circumstances May Merit Inclusion of Race (CC) 4 (1.2)  
Administrator’s Decision (AD) 2 (0.7)  
Race Included Only if Necessary (ON) 2 (0.7)  
Race Given Only to Officers (OO) 1 (0.5)  
Depends on Whether Suspect is Apprehended (DA) 1 (0.5)  
Depends on Whether Police Report Includes Race (DR) 1 (0.5)  
Independent Variables Yes (%) No (%)
Formal Policy 70.7 29.3
Race Debated 21.3 78.7
Decision Maker    
   Myself, as Campus Safety Director 44.1  
   Administrator 33.1  
   Other 22.8  
   Four-Year University or Higher 32.0  
   Two-Year College Only 32.8  
   Vocational School 32.5  
   Religious School 2.6  
   West 21.2  
   Midwest 24.3  
   Northeast 15.4  
   South 36.9  
   D.C./Territory 2.1  

While only 38% of respondents reported that suspect race is included in their Crime Alert contents policy, 59% of the respondents indicated that they had no formal policy, but that suspect race is included on a case-by-case basis. Respondents who indicated that the race of a suspect is only included in Crime Alerts on a case-by-case basis were able to provide narrative comments to more fully explain. These narrative responses were then categorized and coded based on similarity of content.76These categories are: OO (race given only to officers); SD (race included if there are sufficient details to distinguish suspect from general population); IR (includes race); ER (excludes race); AD (administrator’s decision); HC (included only in hate crimes): DA (depends on whether suspect is apprehended); NR (no Crime Alerts issued); CC (certain unstated circumstances may merit inclusion of race); DR (depends on whether police report includes race); ON (race included only if necessary); NA (no answer, or answer not responsive); CO (complexion only included).

Of the 324 respondents who reported that suspect race is included in their Crime Alerts on a case-by-case basis, the majority (63%) indicated Includes Race (IR). There was also a noticeable drop off to the next two categories, Excludes Race (ER) (15%) and Race Included Subject to Additional Details Provided (SD) (11%), and beyond.

At the bivariate level, chi-square tests were computed to assess any potential relationships between the independent variables and Race Included. In fact, four of the five independent variables were significantly related to Race Included, although they are all fairly weak relationships as evidenced by the Phi and Cramer’s V statistics seen in Table 3. These include Formal Policy2 = 16.79, p < .001), Race Debated2 = 9.97, p < .01), Decision Maker2 = 12.50, p < .01), and Region2 = 12.07, p < .05). More specifically, the institutions that include suspect race (if it is known) in their Crime Alerts are: (1) significantly more likely (79%) to have a formal Crime Alerts policy covering the information which should be included; (2) significantly more likely (81%) to have discussed or debated the race-inclusion issue; (3) significantly more likely (53%) to have the campus safety director make the inclusion decision in Crime Alerts; and (4) significantly more likely (43%) to occur at institutions in the southern United States.

Table 3: Bivariate Relationships Among the Study Variables

Race Included Formal Policy  
No Yes χ2 Phi/Cramer’s V
No 171 (34%) 325 (66%) 16.79*** 0.15
Yes 63 (21%) 239 (79%)
Race Included Race Debated  
No Yes χ2 Phi/Cramer’s V
No 151 (34%) 297 (66%) 9.97** 0.13
Yes 23 (19%) 99 (81%)
Race Included Decision Maker  
Me Admin. Other χ2 Phi/Cramer’s V
No 138 (39%) 134 (38%) 83 (23%) 12.50** 0.15
Yes 120 (53%) 59 (26%) 46 (21%)
Race Included Institution  
4-Year 2-Year Vocational Seminary χ2 Phi/Cramer’s V
No 157 (32%) 155 (31%) 165 (33%) 17 (4%) 4.86
Yes 94 (31%) 109 (36%) 93 (31%) 4 (2%)
Race Included Region    
West Midwest Northeast South D.C./Territory χ2 Phi/Cramer’s V
No 122 (25%) 121 (24%) 77 (16%) 164 (33%) 10 (2%) 12.07* 0.12
Yes 48 (16%) 72 (24%) 43 (14%) 130 (43%) 7 (3%)

Note. Observed frequencies and row percentages are reported.

*p < .05; **p < .01; ***p <.001

While the bivariate analyses indicated that there were significant associations among the key variables of interest, it is important to consider these relationships within a multivariate context. Due to the dichotomous nature of the dependent variable, a logistic regression model was estimated, as seen in Table 4. An omnibus model test determined that the model fit the data well, which was evidenced by a significant chi-square statistic (χ2 = 37.90, p < .001).77Multicollinearity—statistical associations between the independent variables—can be an issue when estimating multiple regression models. Researchers should begin to become concerned when Variance Inflation Factor (“VIF”) statistics are greater than 2.50. See Paul D. Allison, Multiple Regression: A Primer 141 (1999). As illustrated by the VIF statistics in Table 3, multicollinearity was not an issue within these analyses. Several significant findings were demonstrated. First, having a formal Crime Alerts policy dictating the information that should be included significantly predicted an increase in suspect race inclusion (B = 0.67, SE = 0.21, p < .01). Consequently, these data reveal that educational institutions which have formal Crime Alert policies regarding which factors should be included are statistically more likely to include suspect race in their Crime Alerts. Institutional administrators—relative to the campus safety director—are statistically less likely to make the decision to include suspect race (B = -0.64, SE = 0.21, p < .01). Put another way, campus safety directors are more often—compared to administrators—the decisionmakers when it comes to whether or not to include race in their Crime Alerts. And institutions in the Midwest (B = 0.52, SE = 0.27, p < .05) and Southern (B = 0.68, SE = 0.25, p < .01) states are statistically more likely to include suspect race, relative to institutions in the Western United States.

Table 4: Logistic Regression Model Predicting Inclusion of Suspect Race in Crime Alerts

Variable  B  SE Wald χ2  Exp(B)  VIF
Formal Policy 0.67** 0.21 10.66 1.95 1.05
Race Debated 0.04 0.22 0.03 1.04 1.08
Decision Maker
   Admin. -0.64** 0.21 9.07 0.53 1.17
   Other -0.24 0.23 1.09 0.78 1.14
   Two-Year 0.32 0.22 2.17 1.38 1.39
   Vocational -0.13 0.23 0.34 0.88 1.43
   Seminary -1.16 0.66 3.12 0.31 1.08
   Midwest 0.52* 0.27 3.70 1.68 1.58
   Northeast 0.42 0.31 1.86 1.52 1.41
   South 0.68** 0.25 7.75 1.98 1.68
   D.C./Territory 0.65 0.56 1.23 1.92 1.10
Model Statistics
-2 Log Likelihood 719.52
Omnibus Model χ2 37.90***
Nagelkerke R2 0.09

*p < .05  **p < .01  ***p < .001

V.     Discussion

This Study contributes to the literature by providing an analysis of the implementation of Clery Act timely warning requirements generally, and, more specifically, inclusion of suspect race within those Crime Alerts. This study is the first to present both a legal and empirical examination of the national implementation of Clery Act timely warning practices. A number of key findings emerged from this effort and are summarized below. Before setting forth those findings, we address the possibility that our results are skewed by the demographics of our respondents. They were, as noted above, middle-aged, largely White, and male. The short answer to this concern is that the survey did not call for attitudinal data, which could give rise to a claim that implicit (or explicit) racial or other bias affected the responses. The data sought were limited to eliciting information about the process of drafting the Crime Alerts and the making of the race-inclusion decision; no opinion data were sought.

We found that almost three-fourths (71%) of survey participants reported that their institution has a formal written or unwritten Crime Alert policy covering the information that should be included in such alerts. While only two-fifths (38%) of the campus safety directors indicated that their institutions’ policies include suspect race, nearly three-fifths (59%) stated that suspect race was included on a case-by-case basis.78We note the discrepancy in the difference between respondents who stated their institution did not have a formal written or unwritten policy regarding the contents of Crime Alerts (29%), and the percentage of respondents who stated their institution does not have a policy but decides the race-inclusion issue on a case-by-case basis (59%). We attribute this to some respondents’ belief that the two are not inconsistent; that is, even where a policy is in place, the race-inclusion decision is ultimately still one that is made on a case-by-case basis.

More specifically, of those who indicated suspect race was included on a case-by-case basis, the majority (63%) reported their alerts include race. Moreover, the results demonstrated that only two-fifths (21%) of the institutions’ personnel ever discussed or debated the issue of inclusion of suspect race in their Clery Act reporting. In general, these findings suggest that educational institutions in the United States are hesitant to include—or even discuss the possibility of—suspect race in their Clery Act Crime Alerts. This is interesting considering that the participants overwhelming reported that they regularly include other characteristics (e.g., suspect sex, age, body type, clothing description) in their Crime Alerts.

This begs the question: If suspect race is known, why not include it with other individualized descriptors to provide the legally required “timely warning” of campus crime and a description of the person who is alleged to have committed it? Inclusion of as much of a suspect description as possible seems prudent, and, as seen in previous research from Pelfrey, Keener, and Perkins,79See Pelfrey et al., supra note 7, at 255–56. all campus stakeholders generally agree upon the importance of public safety, and that suspect descriptions should be as complete as possible.

Bivariate and multivariate analyses also demonstrated interesting findings. Institutions that include suspect race in their Crime Alerts are more likely to have a formal Crime Alerts policy covering the information which should be included; to have discussed or debated the inclusion of suspect race in Crime Alerts; to have the campus safety director make the inclusion decision in Crime Alerts; and to occur at institutions in the southern United States. After controlling for other variables, the logistic regression model determined that having a formal Crime Alerts policy covering the information which should be included positively predicts the inclusion of suspect race. This means that educational institutions that have formal Crime Alert policies regarding which factors should be included are statistically more likely to include suspect race in their Crime Alerts, net of other factors.

Another interesting finding is that institutional administrators (relative to the campus safety director) are less likely to make the decision to include suspect race. At the same time, a significant portion of campus safety directors are required to arrive at a race-inclusion decision after consultation with a range of administrators. Lastly, institutions in the Midwest and Southern United States (relative to institutions in the Western United States) are more likely to include suspect race. These results reveal that factors related to institutional policy, decision-making regulation, and geographic region are all important in explaining the decision to include or exclude suspect race from Crime Alerts.

VI.     Policy Implications

Student protests about the contents of Crime Alerts mandated by the Clery Act have affected institutional responses to the race-inclusion question. These protests, plus the total lack of guidance from the Act or DOE on whether to include suspect race as a descriptor in these alerts, have created great confusion among reporting institutions. Given that these federally mandated Crime Alerts are typically issued by an institution’s campus safety (or security) office, most would assume that is the source of the suspect race-inclusion decision. However, the survey results evidence a high degree of administrator involvement in the race-inclusion decision in about one-half of the nation’s educational institutions subject to the Clery Act.

Although we found that a large majority of institutions have policies regarding race inclusion, they also apply a careful case-by-case approach in deciding whether and when to include race in Crime Alerts. Some universities involve their diversity officers and a host of other administrators in these decisions, an apparent response to minority students’ protests against race inclusion. This may have caused the exclusion of race from Crime Alerts at some institutions in order to address student concerns that race inclusion perpetuates racial stereotypes. Institutions using a multiple- or group-decision-making approach should avoid untimely “timely warnings” by ensuring their decisions are made in an expedited fashion.

Even in a consultation-with-others model, we believe campus safety directors should make the final race-inclusion decision under the Clery Act from a law enforcement perspective, rather than an administrator’s perspective. We stress that if race is reported to the police, it should not be excluded as a blanket policy from Crime Alerts.

Before defending these positions, we will address a number of potential objections to our recommendations. First, some might argue that we fail to engage the current national conversation regarding racial injustice and police misconduct. We acknowledge the research establishing the reality of institutional racism, and its manifestations in overt and subtle, or implicit, racial discrimination that exists in society.80See, e.g., Shirley Anne Tate & Damien Page, Whiteliness and Institutional Racism: Hiding Behind (Un)conscious Bias, 13 Ethics & Educ. 141 (2018) (discussing how unconscious racial bias perpetuates racism in modern institutions). We also acknowledge the reality of police misconduct, which, of late, has led to massive national demonstrations.81See generally Malcolm D. Holmes & Brad W. Smith, Race and Police Brutality: Roots of an Urban Dilemma 12 (2008) (suggesting that “police behavior ultimately represents a complex interplay involving various dimensions of intergroup relations” and explaining that “[g]roups are said to arise from common interests and needs that can be furthered most effectively by means of collective action”). But the connection between these phenomena and the Clery Act’s mandate to issue Crime Alerts, which “aid in the prevention of similar occurrences” as the statute states, is tenuous at best.8220 U.S.C. § 1092(f)(J)(3). If the argument against having campus safety directors make the race-inclusion decision relies upon the fact that middle-aged, White, male, former law enforcement officers (or current campus safety directors who are considered law enforcement officers) are, in close to one-half of institutions, the sole drafters of Crime Alerts, there is an implication or false assumption that persons with these characteristics are by definition racially insensitive or biased against Black or other minority students.

We acknowledge the potential negative element of campus safety directors’ law enforcement background: the police culture. Because many directors do have prior law enforcement experience, they have inevitably been exposed to—and likely indoctrinated into—the police culture. One important, and negative, aspect of the police culture is that it creates an informal shield from misconduct (i.e., the “code of silence”).83See Sanja Kutnjak Ivkovic, Fallen Blue Knights: Controlling Police Corruption 82 (2005). The police culture also promotes the elements of danger and suspicion, and there is research to suggest that some officers use race as a proxy for suspicion.84See Randall Kennedy, Race, Crime, and the Law 137 (1997). Finally, we acknowledge the culture of American policing is steeped in an ugly history of racism (e.g., slave patrols, indifference to lynchings, and enforcement of Jim Crow laws).85See Robert A. Brown, Policing in American History, 16 Du Bois Rev. 189, 189–90 (2019). It is clear that the police, as an institution, have not always stood on the right side of justice, as our society defines justice today.

However, the potential that a campus safety director will engage in unwarranted issuance of Crime Alerts is merely an assumption and should not be the basis of taking the decision to issue Crime Alerts that include race of suspect away from the director. These campus safety directors have preexisting experience with the justice system. They know the test for a Terry stop is based on articulable facts constituting reasonable suspicion, and that arrests require probable cause.86See Geoffrey P. Alpert, John M. MacDonald & Roger G. Dunham, Police Suspicion and Discretionary Decision Making During Citizen Stops, 43 Criminology 407, 415 (2005). This study found that minority status does influence an officer’s decision to form nonbehavioral as opposed to behavioral suspicion, but that minority status does not influence the decision to stop and question suspects. Id. at 426. Were they chiefs of a municipal police department, they would not condone a stop or arrest of an individual by their officers without these legal tests being satisfied. Likewise, they would not condone such a stop or arrest of a student or non-student by campus safety officers. They know the purpose (and statutory requirement) of Crime Alerts is to provide “pertinent information” to the campus community about criminal incidents, so as to protect that community and prevent similar crimes.872016 Handbook, supra note 5, at 6–12. And given current institutional concerns about maintaining an image of racial sensitivity, particularly in the face of minority students’ complaints about their being stereotyped, these campus safety directors are extremely careful in drafting suspect descriptions so that they maximize the level of detail provided to avoid such charges.88Pelfrey et al., supra note 7, at 255–56. But these Fourth Amendment tests justifying stops and arrests are irrelevant in the Clery Act’s timely warning context because the mandated Crime Alerts are intended to protect the campus community, not to serve as the basis of stops or arrests by campus safety officers.

We also address the argument that elimination of suspect’s race from Crime Alerts is a strike against racial profiling. We believe this argument is misguided. It is well established that law enforcement officers may not use race alone as a factor in conducting stops or arrests.89United States v. Brignoni-Ponce, 422 U.S. 873, 884–86 (1975) (holding that the Fourth Amendment was violated by stops at an immigration checkpoint based solely on “Mexican ancestry” appearance). To do so would in fact be discriminatory racial profiling. But neither that legal definition of racial profiling, nor that of civil rights organizations, fits in the Clery Act context.

The US Department of Justice (“DOJ”) guidelines for federal law enforcement agents state the following regarding use of race:

In making routine or spontaneous law enforcement decisions, such as ordinary traffic stops, Federal law enforcement officers may not use race, ethnicity, gender, national origin, religion, sexual orientation, or gender identity to any degree, except that officers may rely on the listed characteristics in a specific suspect description. This prohibition applies even where the use of a listed characteristic might otherwise be lawful.90U.S. Dep’t of Just., Guidance for Federal Law Enforcement Agencies Regarding the Use of Race, Ethnicity, Gender, National Origin, Religion, Sexual Orientation, or Gender Identity 1 (2014) (emphasis added).

An earlier publication from the DOJ provided the following definition:

For this guide, racial profiling is defined as any police-initiated action that relies on the race, ethnicity, or national origin rather than the behavior of an individual or information that leads the police to a particular individual who has been identified as being, or having been, engaged in criminal activity. There is almost uniform consensus on two corollary principles that follow from adopting this definition of racial profiling: police may not use racial or ethnic stereotypes as factors in selecting whom to stop-and-search, and police may use race or ethnicity to determine whether a person matches a specific description of a particular suspect.91Deborah Ramirez, Jack McDevitt & Amy Farrell, U.S. Dep’t of Just., A Resource Guide on Racial Profiling Data Collection Systems: Promsiing Practices and Lessons Learned 3 (2000) (emphasis added).

According to the American Civil Liberties Union, racial profiling is defined as follows:

“Racial Profiling” refers to the discriminatory practice by law enforcement officials of targeting individuals for suspicion of crime based on the individual’s race, ethnicity, religion or national origin. . . . Racial profiling does not refer to the act of a law enforcement agent pursuing a suspect in which the specific description of the suspect includes race or ethnicity in combination with other identifying factors.92Racial Profiling: Definition, Am. C.L. Union (emphasis added),

Likewise, the Southern Poverty Law Center defines racial profiling this way:

Race and ethnicity should play NO role in an officer’s decision of whom to stop, interview, frisk, search, and arrest. . . . The only exception to the rule that race and ethnicity should play no role in an officer’s decision-making is that race and ethnicity may be relevant factors when provided as part of a credible, timely, and specific suspect description. That said, agency policy must make clear that race and ethnicity may be used only in combination with other physical characteristics (e.g., gender, age, height, weight, and clothing) to match someone to a suspect description.9310 Best Practices for Writing Policies Against Racial Profiling, S. Poverty L. Ctr. (Oct. 28, 2018) (emphasis added),

We consulted the Clery Center, a non-profit agency established by the Clery family to facilitate compliance with the Act by conducting training and other intitiaves designed to support campus safety at higher education institutions.94About, Clery Ctr., According to their representative,

the Clery Act does not require the inclusion of race in a timely warning and actually does not require the inclusion of a suspect description at all. Our philosophy is that if the only identifying information about a perpetrator is their race and/or sex or gender that alone is not enough information to positively identify a suspect in most cases and, therefore, should not be included within a timely warning. If other identifying information is known then that could warrant a decision to include a suspect description within the timely warning itself and that other identifying information should be included.95Email from Laura Egan, Senior Dir. of Programs, Clery Ctr., to Jona Goldschmidt (Apr. 16, 2020, 16:43 CST) (on file with author) (emphasis added). While the italicized sentence is a little cryptic, we believe the author meant to say that race is included, so long as there is “other identifying information” also reported in the Crime Alert description.

Thus, the Crime Alerts race-inclusion issue should not be used as an example of racial profiling. Law enforcement officers should treat all persons alike unless there is actionable intelligence that justifies treating them differently. As long as a suspect’s race is accompanied by other physical descriptors, it does not constitute racial profiling according to the definitions discussed above.

The determination of how many additional facts are necessary to avoid perpetuating a racial stereotype in a Crime Alert is akin to the law enforcement officer’s reasonable suspicion or probable cause determinations. Given their law enforcement background, campus safety directors are not in the business of issuing vague suspect descriptions. They know that it is their duty to protect the campus community, and they will only issue alerts including race with sufficient additional descriptors. They know well that vague descriptions could lead to liability for defamation, unlawful stops, and false arrests. After all, about 31% of our respondents are campus safety directors with a bachelor’s degree, and 48% have graduate or law degrees. They are not likely to issue Crime Alerts with suspect race and only meager additional descriptors.

The determination of the necessary number of additional characteristics beyond race that would justify race inclusion is not merely a matter of complying with Fourth Amendment standards. Rather, a lower threshold should apply to justify issuance of a Crime Alert that includes race because the alerts are “timely warnings” and are not intended to be sufficient to satisfy a legal test for a stop or arrest; rather, aiding the campus community in protecting itself is the legislative purpose of the Clery Act. Thus, in a given case, there may not be a description of a suspect that rises to the level of reasonable suspicion or probable cause, but it nevertheless may be sufficient to provide a timely warning about a crime and a wanted suspect who constitutes a continuing threat to the campus community. Campus safety directors, therefore, should not be hesitant to issue Crime Alerts that may not pass constitutional muster but will aid the campus community in protecting itself.

We know that race is a social construct.96According to the American Anthropological Association’s Statement on Race: With the vast expansion of scientific knowledge in this century, however, it has become clear that human populations are not unambiguous, clearly demarcated, biologically distinct groups. . . . “Race” thus evolved as a worldview, a body of prejudgments that distorts our ideas about human differences and group behavior. Racial beliefs constitute myths about the diversity in the human species and about the abilities and behavior of people homogenized into “racial” categories. The myths fused behavior and physical features together in the public mind, impeding our comprehension of both biological variations and cultural behavior, implying that both are genetically determined. Racial myths bear no relationship to the reality of human capabilities or behavior. Scientists today find that reliance on such folk beliefs about human differences in research has led to countless errors. AAA Statement on Race, Am. Anthropological Ass’n (May 17, 1998), Despite scholars’ objections, the reality is that members of society do utilize racial constructs in their everyday lives, as does the federal government.97The federal government’s current definitions for the racial and ethnic groups are: American Indian or Alaskan Native; Asian; Black or African American; Hispanic or Latino; Native Hawaiian or Other Pacific Islander; and White. About, U.S. Census Bureau, Also true is the fact that skin color ranges in shading among Black, Whites, Hispanics, Asians, Middle-Eastern persons, and others, but that too should not result in a blanket prohibition upon use of the race descriptor. One proposal for elimination of race in police crime dispatches calls for the use of a color palette or complexion chart, with a universal set of skin colors and shades that could be presented to witnesses or victims to establish a suspect’s description.98See Bela August Walker, The Color of Crime: The Case Against Race-Based Suspect Descriptions, 103 Colum. L. Rev. 662, 664 (2003). We do not think such a universal complexion chart is workable—particularly if a crime occurred at night or evening hours—or even necessary if victims or witnesses clearly report a suspect’s race or state they are unsure about it, in which case that fact should be included in the Crime Alert. And we know that eyewitness testimony can be unreliable when given in a criminal trial, leading to many wrongful convictions.99Thomas D. Albright, Why Eyewitnesses Fail, 114 Proc. Nat’l Acad. Sci. 7758, 7758 (2017). But we are arguing here for a more complete suspect description for purposes of protecting a campus community from similar crimes, not for apprehension purposes.

The fact remains that, in addition to the students who protest against any inclusion of suspect race, another set of students, faculty, and staff want to be given timely warning of crime on campus. The Clery Act requires institutions to report, for the most part, felonies that pose an ongoing threat to the campus community.100Institutions are required to provide timely warnings of “crimes considered to be a threat to other students and employees . . . that are reported to campus security or local law police agencies.” 20 U.S.C. § 1092(f)(1)(J)(3). The Act lists the crimes which statistics are to be kept: (i)(I) murder; (II) sex offenses, forcible or nonforcible; (III) robbery; (IV) aggravated assault; (V) burglary; (VI) motor vehicle theft; (VII) manslaughter; (VIII) arson; (IX) arrests or persons referred for campus disciplinary action for liquor law violations, drug-related violations, and weapons possession; and (ii) [listed hate crimes]; and (iii) . . . domestic violence, dating violence, and stalking incidents that were reported to campus security authorities or local police agencies. Id. § 1092(f)(1)(F). This justifies the community’s heightened desire to avoid victimization, which is, after all, the purpose of the Clery Act’s timely warning requirement.

Most, but not all, directors of campus safety departments have a law enforcement background; their professional organization is called the International Association of Campus Law Enforcement Administrators.101About IACLEA, Int’l Ass’n. Campus L. Enf’t Adm’rs., The Clery Act contemplates that the “campus security authority” is the individual who receives reports of crime, and who will thereupon issue a timely warning of it to the campus community.10220 U.S.C. § 1092(f)(4)(B)(i). These individuals, if campus safety directors, will establish policies based on their law enforcement background and current practices.103See id. § 1092(f)(5)(C). We know from this Study, however, that these directors are now in the minority as far as setting policy on this issue. Administrators (33%) and “others” (23%) besides directors (44%) establish their institution’s race-inclusion policy or make the ad hoc inclusion decisions about it. Curiously, little debate about the issue has occurred between administrators and campus safety departments. This reflects the greater authority administrators currently have over campus safety directors to set policies or practices regarding the race-inclusion question.

We have found that a large majority of institutions that decide the issue on an ad hoc basis do, in fact, include race in their Crime Alerts. This shows us that suspect race does creep into many institutions’ Crime Alerts, despite an institutional policy or practice—presumably adopted by administrators or “others”—of omitting the race descriptor altogether. Campus Crime Alerts should contain the same information law enforcement officers collect when preparing a police report, since most campus safety departments these days perform the same functions on campus, are armed, and are authorized to make stops and arrests. Municipal police departments specifically require race of suspect and many other characteristics, if known, to be included in police reports.104See, e.g., How To Describe a Suspect, Chi. Police Dep’t, (listing “race or national origin” as the second descriptor, after sex, of a list of several possible descriptors). Complexion (e.g., light, medium, dark), in combination with the perceived racial category provided by a victim or witness statement, and additional physical descriptors would be the best means of ensuring campus safety. Secondarily, this would be the best means of enhancing the likelihood of suspect apprehension and satisfying the demands of those who object to race inclusion on perpetration-of-racial-stereotypes grounds.

All this leads us to the following conclusions. Absent federal guidance, in every case of reported campus crime, the campus security authority has three options: (1) exclude race from the Crime Alert as a matter of written or unwritten policy, even if it is reported by a victim or witness, for the individual or collective greater good of fighting race as a social construct, to respond to protesting students who claim minority students are being stereotyped, to protect an institution’s image of being racially sensitive, to prevent perceived racial profiling, or to avoid lawsuits; (2) include race in Crime Alerts when reported by a victim or witness, along with sufficient additional individualized descriptors that are reported; or (3) include race even when insufficient additional descriptors are available.

We believe the first option will not serve the statutory purpose of the Clery Act, despite being perceived by some as the means of addressing higher social goals. Members of the campus community are entitled to Crime Alerts regarding serious crimes that have occurred where the suspect has not been apprehended and the threat of similar crimes continues. Research shows that a segment of the campus community is among the “fearful” group, so general advice like “always walk with others at night” is obvious and unhelpful. We believe that the need for campus safety, not only for the fearful, but for all members of the campus community, outweighs students’ perceived injustice or stereotyping by the inclusion of race in Crime Alerts. As noted earlier, we acknowledge the many areas of society in which minority group members are victims of discrimination, institutional and interpersonal,105Sara N. Bleich, Mary G. Findling, Logan S. Casey, Robert J. Blendon, John M. Benson, Gillian K. SteelFisher, Justin M. Sayde & Carolyn Miller, Discrimination in the United States: Experiences of Black Americans, 54 Health Servs. Res. 1399, 1405 (2019) (reporting the results of a telephone survey showing, inter alia, Blacks reported personally experiencing “widespread discrimination across social institutions and interpersonally”). and that Black students have experienced its various forms on campus.106See Adrienne Green, The Cost of Balancing Academia and Racism, The Atlantic (Jan. 21, 2016), (reporting that some Black students suffer mental illness as a consequence of campus discrimination). We also believe it the case that the suspects in campus crime are usually not students, but those who come from beyond the campus and seek vulnerable victims on often large campuses, which do not always have effective security.

Critics may argue that it is preferable to exclude race of suspect because a Black student in a predominantly White institution will feel stereotyped upon reading a Crime Alert that includes race whether the description does or does not contain adequate additional descriptors. Thus, some institutions have issued Crime Alerts with “complexion” as a proxy for race, in addition to other available descriptors. But suppose it was known that a male with a “light complexion” is engaging in serial rapes of women on campus, regardless of whether the campus is predominantly White or Black. Crime Alerts in this hypothetical include his weight, height, and other adequate individualized descriptors, including a different clothing description for every such incident. Would female students want to know the race of the suspect under these circumstances? We believe they would, for their own safety, and we suggest the same rationale for including race in this hypothetical applies to all serious campus crimes. After all, a “light complexion” descriptor could refer to a White, East Asian, Asian, Middle Eastern, Hispanic, or Black suspect. For the “medium” or “dark” complexion descriptors, the suspect could belong to any one of the same groups. This would mean everyone, or no one, would be suspected by members of the campus community, thus increasing the general fear level of the unknown on campus and doing nothing for the safety of the campus community.

Interestingly, in the United Kingdom, London’s Metropolitan Police Authority uses a six-part “Identity Code” for a suspect’s race .107Kevin Bowsher, The Code Systems Used Within the Metropolitan Police Service (MPS) To Formally Record Ethnicity, Metro Police Auth. (Mar. 2, 2007), This “6+1 Visual Assessment Ethnicity Code” contains the following codes for suspects: (1) White – North European; (2) White – South European; (3) Black; (4) Asian; (5) Chinese, Japanese, or Other South East Asian; (6) Arabic or North African; (9) Unknown.108Id. This system is not perfect, because “Black” individuals themselves vary in skin color. So, an improvement would be to combine the light, medium, and dark complexion features of this six-part Ethnicity Code. Uniformity by campus safety departments—and law enforcement generally—would be helpful in this regard.

The second option for Crime Alert drafters, in which race is included in Crime Alerts when sufficient additional individualized descriptors are available, is the best one. What constitutes “sufficient” additional descriptors is a determination that will necessarily be made by the Crime Alert drafter, possibly in consultation with other stakeholders. But assuming race and sufficient additional descriptors are provided, there is no reason not to report such descriptions, as most of our respondents indicated they do.

The third option of including race even when additional descriptors are few is no option at all. It would be the kind of suspect description about which students would justifiably complain. And it would fall squarely into the definitions of racial profiling cited above.

In a recent opinion article published by Inside Higher Ed, Former Boston Police Commissioner Edward Davis argued that educational institutions should focus on disseminating clear and accurate information that is immediately needed.109Edward Davis, It’s Time to Reform the Clery Act, Inside Higher Ed (May 15, 2020), His example of sharing timely COVID-19 information is analogous to sharing timely campus crime information in the sense that all campus constituents (e.g., faculty, staff, students, and their parents) should be provided with the simple truth regarding how much of a threat there is and what the school is doing to mitigate the threat. If the “simple truth” of a suspect description includes suspect race, it should likewise be disseminated as a practical matter when additional individualized descriptors are available, so as to protect the campus community.

Ultimately, institutions must decide which is more important: protecting the campus community from crime that has already occurred and notifying its members of the ongoing threat of similar crimes, or prophylactically addressing perceptions of discrimination, stereotyping, or racial profiling.

VII.     Study Limitations and Directions for Future Research

Though this study makes an important contribution to the literature, the findings and implications should be viewed in light of a few limitations. First, the data are based on a self-selected sample, which can affect the generalizability of the results. Although the survey was distributed to the entire population of Clery Act reporters and participation was institutionally and regionally diverse, those who chose to participate may be systematically different from those who did not. Thus, our results may not generalize to non-participating institutions due to selection effects within our sample, the uniqueness of the participating institutions, or both.

Second, the logistic regression model only accounted for 9% of the explained variance in the dependent variable. Due to the nature of the survey methodology, we were cognizant of the length of the survey and time commitment for the participants. Thus, our results could be affected by omitted variable bias.110See Jacinta M. Gau, Statistics for Criminology and Criminal Justice 19 (3d ed. 2019). Future research should take into account other relevant variables such as campus and surrounding neighborhood crime statistics, the political atmosphere of the geographic region, and the public or private funding of the institution.

Third, all of the measures are based on data collected from a single source—the campus safety director or another designated Clery Act reporter—which could contribute to common method variance.111See Michael K. Lindell & David J. Whitney, Accounting for Common Method Variance in Cross-Sectional Research Designs, 86 J. Applied Psych. 114, 114 (2001). Future research should address this limitation by collecting data from multiple sources or raters. Fourth, the data were collected at one point in time and are, therefore, cross-sectional in nature. Therefore, we take care not to cast our findings in terms of causal relationships. Future studies should attempt to collect longitudinal data to (1) explore the potential causality of the relationships, and (2) examine potential changes in Clery Act reporting decisions over time.

Additionally, future research should study whether there are any relationships between crime and apprehension rates and Crime Alerts that include or exclude race of suspect. It would also be interesting to study cases in which victim or witness statements include the race of a suspect but the subsequent Crime Alert omits this fact from the suspect’s description, the reasons for such a decision, and the process by which such a decision was made.


The results of our survey of campus safety directors and others who report campus crime to DOE under the Clery Act show great confusion regarding whether it is necessary, useful, or offensive to include race of suspect in mandated “timely warnings” of crime to the campus community. The involvement of university administrators at some institutions has resulted in elimination of race of suspect—or made many campus safety directors hesitant to include it—in campus Crime Alerts. We need to learn much more about the relationship of these Crime Alerts that include, or exclude, race of suspect to the campus community’s overall feeling of safety. If the alerts which exclude race of suspect inhibit the campus community’s ability to protect itself—which is why they are required by the Clery Act—we urge that federal regulations mandate its inclusion, provided there are sufficient additional individualized characteristics to distinguish the suspect from a given racial group, and, further, that the final decision regarding race inclusion be made by the campus safety director.

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