This article originally appeared in the September 2000 issue of "Quill Magazine" a publication of the Society of Professional Journalists.
This article originally appeared in the September 2000 issue of "Quill Magazine" a publication of the Society of Professional Journalists.
As college and university students go back to school this fall, student and professional journalists will have new tools to access campus crime records.
Jeanne Clery |
New regulations from the U.S. Department of Education (DOE) took effect over the summer and require schools to provide more campus crime information than ever before. The rules will, for the first time, open up some "campus court" records.
These rules implement legislation signed into law by President Clinton in 1998 and represent the culmination of nearly a decade of work by a coalition of media and victims' rights groups, led by SPJ and Security On Campus, Inc. (SOC).
Representatives of both organizations were involved in the development of the DOE’s regulatory language. They served on the "negotiated rulemaking" committee for the campus crime reporting provisions and offered extensive written comment on the language dealing with the release of student disciplinary records involving violent crimes and non-forcible sex offenses.
Since 1991, under the federal "Crime Awareness and Campus Security Act," all institutions of higher education, both public and private, that participate in any federal student aid programs have had to report three years’ worth of campus crime statistics, post security policies and make timely warnings. Many image-conscious schools, however, exploited loopholes in the law to hide crimes or violated it without fear of enforcement.
The 1998 amendments and implementing regulations, which took effect July 1 of this year, close off many of these loopholes, strengthen reporting, and put schools in fear of a $25,000-per-violation fine.
The campus security amendments also renamed the law the "Jeanne Clery Disclosure of Campus Security Policy and Campus Crime Statistics Act" in memory of the Lehigh University student murdered on campus in 1986. Clery's parents, Howard & Connie, fought for the original law and founded SOC after they discovered that the students at Lehigh hadn't been told about 38 violent crimes on campus in the three years before Jeanne’s murder.
PUBLIC CRIME LOG AND TIMELY WARNINGS
One of the most significant new reporting obligations is the public crime log that all schools — including private institutions — with a police or security department will be required to maintain. Schools are now required to disclose in this log "any crime that occurred on campus ... or within the patrol jurisdiction of the campus police or the campus security department and is reported to the campus police or security department."
A public crime log must be made available. |
Schools that already maintain a police log under state law may use that log to comply with this requirement as long as all of the minimum requirements are met, and they may use state crime definitions in their log. Because the law took effect in October 1998 — before the DOE had issued regulations — schools were expected to make a "good faith" effort to comply with the requirement before the regulations were issued and should have begun making their logs public at that time.
The log is required to include the "nature, date, time and general location of each crime," as well as its disposition if known. Incidents are to be included within two business days, but certain limited information may be withheld to protect victim confidentiality, ensure the integrity of ongoing investigations or keep a suspect from fleeing. Only the most limited information necessary may be withheld, and even then it must be released "once the adverse effect ... is no longer likely to occur." It does not require the release of names, but a school may include them at their discretion or under a state crime log law.
The log must be available to the public during normal business hours. This means that, in addition to students and employees, the general public — such as parents or members of the local press — may access it. Logs remain open for 60 days and subsequently must be available within two business days of a request. Because many students rely on the media, especially the campus media, for their crime information, media access to and reporting of this log is a critical public safety measure.
Schools continue to have an obligation to issue "timely warnings" to the campus community if they believe a reported crime poses an ongoing threat to students and employees on campus. Unlike the crime log, this reporting is not limited to a police or security department and should be made in less than two business days. These warnings, however, are restricted to the list of crimes that schools must report in their annual statistics, and the criteria used by a school for determining what poses a threat can be very subjective.
ANNUAL REPORT AND CAMPUS CRIME STATISTICS
Each institution must also continue to publish an annual report every year by Oct. 1 that contains crime statistics for the three most recent calendar years. The report also contains certain security policy statements, including sexual assault policies which assure basic victims’ rights, details about the law enforcement authority of campus security officers and where students should go to report crimes. Prior to this year, reports had been due by Sept. 1, but the regulations were changed to give schools with a late fall start more time to distribute their report.
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The report will be made available automatically to all current students and employees, and prospective students and employees are to be notified of its existence and afforded an opportunity to request a copy. Although schools are under no legal obligation to provide a copy of this report to the media, they will likely provide it upon request and will have to provide it to student journalists.
Beginning this year, under a provision added in the new rules, schools can comply with the annual report obligation using the Internet so long as the required recipients are notified and provided the exact Internet address where the report can be found and afforded the opportunity to request a paper copy.
Each institution’s crime statistics are to be reported in the following seven major categories, with several sub-categories: 1.) Criminal Homicide broken down by a.) Murder and Nonnegligent Manslaughter and b.) Negligent manslaughter; 2.) Sex Offenses broken down by a.) Forcible Sex Offenses (including rape) and b.) Nonforcible Sex Offenses; 3.) Robbery; 4.) Aggravated Assault; 5.) Burglary; 6.) Motor Vehicle Theft; and 7.) Arson. For statistics prior to calendar year 1999, a school may use these categories or omit the manslaughter and arson categories.
Schools are also required to report the following three types of incidents if they result in either an arrest or disciplinary referral: 1.) Liquor Law Violations; 2.) Drug Law Violations; and 3.) Illegal Weapons Possession. If both an arrest and referral are made, only the arrest is counted. For statistics prior to calendar year 1999, a school may report both arrests and referrals or just arrests.
The statistics are also broken down geographically into "on campus," "residential facilities for students on campus," noncampus buildings, or "on public property," such as streets and sidewalks immediately adjacent to or running through the campus. Schools can, but do not have to, use a map to denote these areas. As with the new crime categories, this breakdown is required only for statistics from 1999 and later.
Previously one of the major problems with the annual crime statistics had been the exclusion of crimes occurring on public streets and sidewalks running between campus buildings or immediately around the periphery of campus. This had been an issue, especially at schools in an urban setting. The original intent of Congress had been to exclude major highways and other areas unrelated to the campus, but the law had been interpreted by many schools and the DOE to exclude areas most people considered to be a part of the campus — areas adjacent to the campus where there is frequent student pedestrian activity.
The law now mandates that crime statistics published by schools in their annual report must include public property areas — specifically streets, sidewalks, and parking garages — inside the campus and immediately adjacent to it. This change begins with the statistics for calendar year 1999. As was the intent when the law was first enacted, only major thoroughfares like interstate highways are excluded.
Properties owned by the institution but operated by a third party, such as a food vendor, must be included as well. In the past, some schools had excluded this type of property.
Crimes occurring in fraternity houses must be included in annual statistics. |
The report must also indicate if any of the reported incidents, or any other crime involving bodily injury, was a "hate crime." The hate crimes reported must be broken down by the following categories of prejudice: race, gender, religion, sexual orientation, ethnicity or disability.
Schools must gather these crime statistics from campus police or security, local law enforcement, and other school officials who have "significant responsibility for student and campus activities" such as student judicial affairs directors.
Although non-law enforcement school officials with "significant responsibility for student and campus activities" have been required to report statistics and make timely warnings since the regulations implementing the original law took effect in 1994, the new rules strongly reinforce this requirement. Many schools have ignored this requirement in the past and reported only police statistics.
The regulations now specify that these "campus activities" should include, but not be limited to, "student housing ... and campus judicial proceedings." Additional guidance offered in a "preamble" before the rules indicates that "a dean of students ... a director of athletics, team coach, and faculty advisor to a student group" would be required to report, but due to the numerous titles currently in use across the country, it does not specify exact job titles.
The DOE believes that "the new definition and guidance reflect the reality that on college campuses, officials who are not police officials or acting as event security at student or campus events nevertheless are responsible for students’ or campus security."
This means that schools cannot merely report their campus police or security office’s crime statistics without at least making an effort to collect statistics from other offices on campus that may have dealt with a crime, such as the student conduct office. Schools must also make and document a "good faith" effort to obtain statistics from local law enforcement agencies.
Professional mental health and religious counselors are now exempt from all reporting obligations, but they may refer patients to a confidential reporting system (which the school must indicate whether or not it has). In previous years, the DOE had exempted "counselors" from timely warnings obligations, but had required them to report statistics — although many schools never did so.
Professional mental health and pastoral counselors were exempted from reporting because of a change in the law that specifically prohibits the redisclosure of any "privileged information." Some counselors had argued that campus officials were requiring them to disclose detailed information to tabulate the statistics, and if victims knew that this might get out, they would be reluctant to seek out counseling services.
During the "negotiated rulemaking" process, both SPJ and SOC representatives argued that it should be possible to collect this information without jeopardizing victim confidentiality. The "confidential" reporting system was adopted as a compromise.
A copy of the statistics must also be provided to the U.S. Department of Education for inclusion in a database that will be distributed to the public on a DOE Web site. Security On Campus, Inc. also has plans to make this information available on the CampusSafety.org Web site and in printed form later this year. Before this year, this information has never been centrally collected by the government.
Violators can be "fined" up to $25,000 by the DOE or face other enforcement action up to suspension from participation in student aid programs. Complaints of violations of these reporting obligations should be filed with the DOE's regional office that has jurisdiction for the state where the school allegedly breaking the law is located.
For many years, colleges and universities have had their own system of justice apart from the criminal courts. These so-called "campus court" proceedings or internal student disciplinary proceedings have been one of the most criticized methods colleges and universities have used to hide their crime.
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Campus court records may be more open under new regulations. |
While these student disciplinary proceedings often handle matters such as cheating, they also deal with violent student misconduct like sexual assault and hazing. Since 1974, the Family Educational Rights and Privacy Act (FERPA), a federal law designed to protect the confidentiality of student grades and other educational records, has been used by these schools to keep the proceedings of "campus courts" concealed. FERPA is also frequently referred to as the "Buckley Amendment."
School officials argue that these hearings provide schools and victims with an easier and faster means of dealing with a violent student on campus. Many crime prevention advocates and media organizations argue that keeping these proceedings shrouded denies the parties due process rights and deprives other students of information about campus crime and justice.
In 1998, an amendment — often referred to as the "Foley Amendment" after its sponsor Congressman Mark Foley, R-Fla. — was added to FERPA that permits institutions of higher education to disclose the final results of a campus court hearing when the school finds that a student accused of committing a crime of violence or a non-forcible sex offense broke a school rule with respect to that alleged crime. Victim and witness names remain confidential unless they authorize their release in writing.
The law is permissive, meaning schools may but are not required to release the records, and the regulations make it clear that release will be left up to individual school policy or state public records laws. At public schools, this means that the records may be available under a state’s public records law or that a state law may continue to restrict public access. Generally, private schools should be able to release the information, but will not be required to.
According to research compiled by the Student Press Law Center, an Arlington, Va.-based organization that provides legal assistance to student journalists, 26 states and the District of Columbia "appear to be governed exclusively by FERPA," while 24 states have laws specifically making educational records confidential. Not all of these state laws will necessarily restrict access to disciplinary records, however.
The regulations implementing the "Foley Amendment" took effect on Aug. 7 and allow the release of any "final results" reached on or after Oct. 7, 1998 — the day President Clinton signed this provision into law. The DOE said they did not make the change retroactive to protect the "expectation of students regarding confidentiality of disciplinary proceedings occurring before the effective date of the statute."
The regulations also make it clear that a school may release the "final results" before any appeals process has been completed and irrespective of any action taken or not taken by the police or criminal courts off-campus. An incident, in fact, need not even have been reported to law enforcement for it to be reportable under this provision.
In order to avoid possible confusion about what information schools can release and in which cases, the regulations offer extensive definitions of terms that the statute itself did not define. An exhaustive list of violent crimes is detailed and includes "date rape" and threats of violence. Non-forcible sex offenses are defined as incest and statutory rape.
The rules define "final results" as "a decision or determination, made by an honor court or council, committee, commission or other entity authorized to resolve disciplinary matters within the institution. The disclosure of final results must include only the name of the student, the violation committed and any sanction imposed by the institution against the student."
The rules also define the term "sanction imposed" as "a description of the disciplinary action taken by the institution, the date of its imposition and its duration." "Violation committed" means "the institutional rules or code sections that were violated and any essential findings supporting the institution’s conclusion that the violation was committed."
"While it doesn’t spell out what these ‘essential findings’ would be, I think that the nature, date, time and location of the offense would be essential to any conviction and therefore should be released," said Carolyn S. Carlson, founder of SPJ’s Campus Courts Task Force and former SPJ national president.
Based largely on proposals made by SPJ, the DOE’s comments attached to the rules also permit schools to disclose either a copy of the "final determination" letter sent to the accused student or to include an update in the school’s public crime log.
Additionally, FERPA has never prohibited schools from releasing disciplinary results with all information that might personally identify a student redacted from the records. Some schools, such as the University of California at Davis, have released this type of information for many years.
These new regulations provide the media — and members of the campus community — with a wealth of campus crime information that had previously been unavailable. This is information that students and others on campus need to make informed decisions about what safety precautions to take and which school to attend.
In the past, some schools have put image before the safety needs of students by covering up serious crimes on campus. They fought hard against this type of legislation.
The media, both on and off campus, play an important role in getting stories about safety and security out to the public. These new regulations put them in a much better position to do their jobs.
S. Daniel Carter is vice president of Security On Campus, Inc., a national non-profit campus safety and victims’ rights organization. He was actively involved in the development and enactment of the 1998 campus security amendments and served on the "negotiated rulemaking" committee that developed the campus crime reporting regulations.
