The Clery Act and University Counsel Ken McKanders

The Clery Act, passed by Congress in 1990, mandates accurate disclosure of data pertaining to crimes on university campuses, and requires “timely warnings” be provided to the public of any on-going threats to the public safety. The law was passed in reaction to the murder and rape of a student, Jeanne Clery, in her dorm room at Lehigh University, in 1986. Her parents have championed the cause of student safety on American campuses, and they and the law named for their daughter have done a lot of good. All higher ed institutions that get federal funds must comply with the Act.

EMU hired Kenneth A. McKanders as University Counsel in November 1987, and he has held that job ever since — nearly 20 years, out lasting 4 or 5 university presidents. He is perhaps the longest serving top level administrator on campus. He is one of the most powerful officials on campus, though he is rarely in the public eye.

But is he effective?

The duties of a University Counsel include ensuring that the University complies with all state and federal laws and regulations pertaining to higher education. Mr.

McKanders had already been EMU’s University Counsel for three years before the Clery Act was enacted. He was well positioned to ensure that EMU institute and maintain procedures to comply with the law, and he had 16 years to do so before the killing of Laura Dickinson.

Only three universities have ever been found to have violated this law’s clear, common-sense requirements: Mt. St. Clare College (now called Ashford University), in Iowa; Salem International University, in West Virginia; and Miami University, in Ohio. EMU will almost certainly be found to have committed multiple violations of the law by the US Dept. of Education. The university’s outside counsel, Butzel Long, has concluded that Eastern violated it repeatedly. EMU’s total violations may exceed in number all prior violations found by the US Dept. of Education.

So what did EMU’s University Counsel McKanders do in the 16 years between the enactment of the Clery Act to ensure EMU’s compliance with it?

The available evidence suggests that Mr. McKanders did little or nothing during that 16 year period to ensure that EMU complied with the Clery Act. (If anyone has evidence indicating that Mr. McKanders did not totally ignore the Act, please bring it to my attention.)

This evidence includes the following:

1. Most obviously, EMU grossly and repeatedly violated the Clery Act (Butzel Long, executive summary, pps. 5-6, 8; and main report, pps. 74-99). The responsible administrators all seem to have lacked any valid understanding of the law’s requirements. In March, EMU administrators denied that the law had been violated; later they asserted that it was not their fault that it was violated. The University Counsel appears to have exercised no oversight over Clery Act compliance, issued no instructions to DPS or DSA, and provided no training for EMU officials on the law’s requirements prior to December 2006.

2. The March 2, 2007 ANN ARBOR NEWS article, “Crime-reporting group monitors EMU murder alert,” reported that “Kenneth McKanders, legal counsel for EMU, said the university followed the law by disseminating the information that was available” about Laura Dickinson’s death. The article then quoted the EMU counsel: “‘We put out information that was available to us and will continue to put out information as it becomes available,’ McKanders said. ‘The cause of death was uncertain, and it wasn’t clear if a criminal act had occurred.’” Contrary to the legal counsel’s claim, EMU did not put out “information that was availableâ€? and had falsely asserted that “no foul playâ€? was suspected.

3. The March 16, 2007 CHRONICLE OF HIGHER EDUCATION article, “A University Is Accused of Hushing UP a Murder” by Sara Lipka, reported that “Kenneth A. McKanders, Eastern Michigan’s general counsel, says he is not sure the case called for a timely warning under the Clery Act. ‘That is a question we’re retaining independent counsel to take a close look at, to determine what our obligations were,’ he says. ‘I guess it would be balancing the warning requirement with any need for confidentiality with regard to the investigation.’” Here Mr. McKanders was echoing the Welch Hall party line of March 2007 that it was a reasonable and lawful choice to NOT inform the public, or Ms. Dickinson’s parents, that her death was being investigated as a homicide. Why a veteran University Counsel would wait until a murder investigation was under way to learn on what a rather famous, 16 year old act of Congress required has not been explained. Why EMU’s counsel did not understand that the Clery Act mandates a warning, not a choice or some imaginary “balancingâ€? about whether a homicide investigation will be kept secret or not, is also unclear.

4. In the period after the Hill Hall murder suspect was arrested on Feb. 23, Mr. McKanders, when asked by various members of the EMU community about the Clery Act, said that he had not organized any training or other on campus education about what the law required. He could not provide, on request of EMU staff, clear and correct explanations of the law or of what EMU had done to follow it. (This according to sources who require anonymity, as well as my own conversation with Mr. McKanders after the first “public forum” on the Hill Hall case.)

5. Reading the Butzel Long report raises doubts about Mr. McKanders’ effectiveness. The report states that Mr. McKanders retrospectively admits “inadequacies in EMU’s knowledge and compliance with the Clery Act rested in part with his office” (pages 98-9 of the June 8 report). Evidently, Mr. McKanders had done so little to inform his peers in the Administration about Clery Act requirements that none of them asked him if the law required a “timely warning” about the Hill Hall homicide case (page 90). Worst of all, Butzel Long reports that the Dept. of Education’s investigators found that EMU lacked the “administrative capability” required to comply with the law, since EMU had never created the required “written policies or procedures regarding Clery Act Compliance, nor are there any clearly identifiable assignments of roles and responsibilities for compliance” at EMU. The lack of this administrative capability is in itself a violation of the Act. At Eastern, the responsibility for Clery Act data compliance rested on two clerical workers in DPS, who each “lacked adequate training and understanding of the Act to properly perform those functions.” One had been assigned Clery Act reporting “tasks in 1990, but received no further training or instruction. To her knowledge, nothing had been done in the intervening years to ensure that the University’s Clery Act reporting was updated to reflect statutory or regulatory changes” (Butzel Long report, pps 97-8). How could the University Counsel tolerate this level of neglect of legal requirements for 16 years?

6. On April 2, 2007, I filed a Freedom of Information Act request, asking Mr. McKanders what communications his office had had with other parts of the University pertaining to the Clery Act in the previous 5 years. I addressed this FOIA to Mr. McKanders himself, since he is in charge of handling FOIAs for EMU. I specifically asked for “copies of any instructions or directions” and “any speeches, printed materials, email correspondence, or written materials of any kind” that the University Counsel’s office has prepared for any other EMU employees discussing the Clery Act, “including any replies by you or your staff to any questions” about the Act from any EMU staff. He replied to me in a letter dated April 4, 2007. Mr. McKanders denied my request for this information, on the grounds that my request “did not describe the public records sufficiently to enable EMU to locate the requested records. Further, your request is being denied pursuant to Section 13(1)(g) of the Michigan FOIA as to the extent that such requested documents exist, they would be subject to the attorney/client privilege and accordingly exempt from FOIA disclosure.”

Mr. McKanders’s letter asserts that my request was too vague to allow EMU –really, Mr. McKanders himself — to recall or locate records which his own office may have created. In other words, Mr. McKanders admitted that either he cannot recall what efforts his office has in the last 5 years made to ensure compliance with the Clery Act, and that he is unable to check; or he is admitting that he made no such efforts in the last 5 years and thus has no records demonstrating efforts to ensure Clery Act compliance by EMU.

His second basis for denying the FOIA, attorney/client privilege, implicitly acknowledges that EMU faces potential financial liability due to the Administration’s violation of the Clery Act. Of course, following the law is the best way to avoid liability, and the plain purpose of the Act is to mandate truthful statements regarding crime on campus. The expected Federal fines (up to $27,500 per violation, and I count about 10 listed in the BL report) may be a small portion of EMU’s total liabilities, if the Laura Dickinson death is litigated.

So: Has Mr. McKanders been mindful of the institution’s genuine interests? Or has he been too much a part of his peer culture in Welch Hall?

Mr. McKanders’ continued service as counsel for EMU appears to be a serious conflict of interest: He was too complicit in the Clery Act violations to serve EMU as the university community struggles to remedy the systemic problems and violations of public trust and federal law. These problems and violations existed both before and after the murder of Laura Dickinson. Plainly, at this point what may be best for Mr. McKanders’ personal interests (a minimizing of his complicity in the Clery Act violations) is contrary to the University’s interests, which include quick disclosure and complete remedy of all sources of EMU’s Clery Act compliance problems.

In sum, Can those who created the crisis be trusted to fix it?

EMU’s well-being depends on creating a campus marked by accountability, transparency, and obeying the law. Butzel Long sagely recommends that EMU move to make “compliance” with relevant laws, regulations, and public policies into “a guiding principal of the University” (page 7, Executive Summary of BL report). Butzel Long also notes that EMU’s administration is plagued by a serious lack of responsible initiative among top officials, which seems to perfectly capture the University Counsel’s relationship to his Clery Act duties.

Obviously, Mr. McKanders is not alone responsible for the Administration’s Clery Act violations and the resulting university crisis. He did not write the “no foul play” statement that President Fallon ordered posted on the University web page, and Mr. McKanders appears to have been deliberately kept uninformed by VP Jim Vick about the homicide case. Nor was the legal counsel among the officials who directly lied to the Mr. and Mrs. Dickinson about the death of their daughter.

But the University Counsel’s failures in the years from 1990-2006 are vital parts of the dysfunctional Administrative culture that created the gross and extreme violations of common decency and the Clery Act, which took place at EMU in 2006-07. Significantly, as the scandal broke, in Feb. and March, Mr. McKanders vigorously defended the validity of EMU’s handling of Ms. Dickinson’s murder, with words that reveal him to have been ill-informed about both the Act and the facts of the case.

Eastern’s Clery Act violations have inflicted serious legal, financial, and moral harm on the University community. Indeed, these violations have done more harm to the well-being of Eastern Michigan University than anything else ever has in the history of the school. This case now stands as the worst scandal ever in the history of higher education in the state of Michigan.

Where has EMU’s general counsel been?

Standards of lawful, competent, and ethical conduct should be expected and enforced at both the top and lower ends of the University’s pay scale. Our credibility depends on it.