Federal Court Rules for University in Issuing Crime Alerts

The First Circuit Court of Appeals has ruled in favor of Johnson & Wales University in a case of first impression addressing the issue of a university’s responsibilities and rights under the Clery Act.   AP&S attorney Paul Curcio successfully represented Johnson & Wales University in the case, Havlik v. Johnson & Wales University, December 5, 2007. 

The Clery Act is a Federal Statute which requires colleges and universities that receive federal aid to keep crime statistics and to post timely notifications of crimes that occur on or about the university’s campus.  The Havlik case centered on one such crime alert.  In deciding in favor of the University, the Court afforded significant protections to university officials tasked with Clery Act compliance.  When a university reasonably believes that issuance of a Crime Alert is required, it will be protected against defamation claims by students named in the Crime Alert.

The Havlik case involved a Crime Alert that the University issued on September 21, 2004, naming the student as having been reported as the assailant in an assault which occurred on a sidewalk adjacent to a university parking lot.   The student was dismissed from Johnson & Wales, and he later sued the University for defamation as a result of the publication of the Crime Alert. 

This case is significant because it is the first Federal Appellate Court case to interpret the Clery Act and its requirements.  Attorney Paul Curcio states that, "The decision gives colleges and universities a blueprint for compliance with the Clery Act while recognizing that universities have wide discretion in formulating the content of crime alert notices."

  The court reviewed the legislative history of the act and concluded that "the need to assure safety and security for campus communities counsels that doubts should be resolved in favor of notification."  The court acknowledged that 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."

              In determining whether a requirement for timely notification existed, general counsel for Johnson & Wales first determined whether the crime was a type covered by the Act; she then ascertained that the crime had been reported to campus security and local law enforcement; an assessment was then made as to whether the underlying conduct signaled a threat to the university community taking into account where the incident happened. 

The court found this template to be a reasonable process for determining whether there was a responsibility under the Act to issue a timely notification about the incident.

In discussing the content of the Crime Alert, the Court went on to hold that because Johnson & Wales general counsel believed that naming of the alleged assailant would be useful to the campus community and assist in preventing future incidents, she included the name of the student and his fraternity affiliation.  The Court held that having taken these reasonable steps, the University would be afforded a qualified privilege which defeated the plaintiff’s claim for defamation.

 "Colleges are typically reluctant to name students in such alerts because of the prospect of being found liable in cases like this one," says S. Daniel Carter, senior vice president of Security on Campus, a watchdog group.  He goes on to say, "This case shows that colleges "ought to err on the side of warning their communities."

By following the steps taken by Johnson & Wales general counsel, colleges and universities can protect themselves from defamation claims brought by students identified in crime alerts.