College and university legal counsel are wisely risk-adverse, but in the hate crime and interpersonal violence areas their caution has been to a fault. Given the notable rise in campus hate crimes, a different approach is needed. Like sexual predators, racist and anti-Semitic hate groups and individuals find higher education a safe haven. White supremacist organizations like the World Church of the Creator gain access to universities by distorting the First Amendment and exploiting the naive tendency of schools that continue to view themselves as bastions of open dialogue. The groups use the campus as their soapbox to recruit and rouse their minions — alienated and often paranoid young people — to the inevitable conclusion that the white race is being crowded out by blacks, Jews, and Asians.
This racist and anti-Semitic killer came to the attention of the University of Illinois police when in a single week in October 1997, he was accused of beating his girlfriend and fighting with other Students. By summer 1998, he was enrolled at Indiana University, espousing the same inflammatory racist and anti-Semitic views he had exhibited at Illinois. We do not know what the Indiana admissions office knew of the killer’s past at Illinois and how effectively its application screened for information that might have uncovered his racist and anti-Semitic views and history of domestic violence. Taken together, the admissions office might have looked elsewhere to fill its classes.
In their book, The Rights and Responsibilities of the Modern University: Who Assumes the Risks of College Life? (Carolina Academic Press, 1999), law professors Robert D. Bickel and Peter F. Lake introduce the concept of "beer bullies" — often gregarious and bright students with strong leadership qualities who exploit the void in student social life to facilitate the emergence of a high-risk drinking subculture. Though no one should equate serving alcohol to underage students with hate crime, rape, and other felonious conduct, the beer bully model is one that offers lessons for addressing criminal and other dangerous activity generally.
Respectful of the Constitutional and other due process issues raised by scrutiny of a small group of students, schools across the country are making use of expulsions and suspensions, and referral for prosecution where criminal activity is indicated to respond to dangerous student conduct. In select instances, applying these sanctions when students espouse violent racist and anti-Semitic views and behavior may be appropriate.
Identifiable criminal profiles exist for dangerously racist and anti-Semitic individuals, sexual predators, and those prone to lethal violence. Both the Federal Bureau of Investigation and the National Center for Hate Crime Prevention can provide you with these profiles, as can many local police departments. Regrettably, few schools dare to probe for that information, though they can and might ask applicants, "Have you ever been suspended or expelled from school or arrested for conduct involving racist speech or behavior or sexual misconduct?" A student's false pledge that he or she has never been suspended, expelled, or arrested for such conduct could then be used in a judicial hearing involving charges brought against the student.
With the courts and the public increasingly holding that colleges and universities share responsibility for the acts of their students, schools would be well-advised to better screen out those who pose a real threat to the public. Take for example, Nero v. Kansas State University (861 P.2d 768, Kan. 1993), where the university permitted a known rapist to reside in the sole summer residence hall. When the rapist re-offended while living in the hall, the university faced a far more damaging case from the rape victim than it might have faced from the student who had previously been convicted of rape to challenge his exclusion from housing.
Schools should continue to admit rehabilitated offenders. But institutions should consider risking legal challenges from racists, beer bullies, sexual predators, and others who threaten the public safety. Higher education's fear of a lawsuit by an aggrieved student, as aberrant as his or her views and behavior may be, only facilitates that student's criminal and morally reprehensible behavior. Higher education is a privilege. Administrators can do more to confront and expose student racists and others who threaten the public while continuing to fulfill the important role they play in the reintegration into society of rehabilitated criminal offenders. Thankfully, Constitutionally-valid models for responding to dangerous students are beginning to emerge.
The National Center for Hate Crime Prevention and the Higher Education Center for Alcohol and Other Drug Prevention can assist institutions seeking to improve their response to hate crimes and violence. Both programs aim to improve prevention practices through policy change and by promoting a collaborative multi-disciplinary approach to prevention.
Reprinted from the Higher Education Law Bulletin, Vol. VIII, No. 2 (San Diego: College & University Law Press, Summer 2000).
Joel Epstein is an attorney and Associate Director of the Higher Education Center for Alcohol and Other Drug Prevention, Education Development Center, Inc. located in Newton, Massachusetts. The Center is funded by the U.S. Department of Education.