ARLINGTON, VA — The legislationreauthorizing the Higher Education Act, which passed both houses of Congressin late September and was signed by the President today, containsprovisions that will have a dramatic effect on the work of college journalists,reports the Student Press Law Center. Both in terms of access to informationabout schools and freedom from censorship by school officials, the new lawcreates requirements and offers recommendations that the campus media maybe among the first to feel.
“Congress has made some dramatic strides in ensuring that college anduniversity students will have greater access to information they need abouttheir schools,” said SPLC Executive Director Mark Goodman. “Andthe fact that Congress has finally voiced its support for student free expressionis important.”
(All references to section numbers are to sections of the final versionof the bill, H.R. 6, and references to page numbers are to the ConferenceCommittee Report, 105-750, which can be found at the Library of Congress website by searching for “105-750.”)
Police and Security Logs
The most significant provision in the new law is the requirement that allcolleges and universities must now create and maintain a log of criminalincidents reported to their campus police or security department and makethat log open to the public. Although public schools are already requiredto do this under state open records laws, private schools will be forcedto provide similar information.
The provision says log entries must include the nature, date, time, general location and disposition of each complaint and must be made available within two business days of the report being made to the department. In addition, new information about the incident that is subsequently uncovered must be added to the report within two business days after it becomes available. The provision does allow campus officials to withhold information if it would jeopardize an investigation or the confidentiality of a victim; however the school must provide “clear and convincing evidence” that the release of the information would have that result.[Sec. 486(e), pages 170-171.]
“It is remarkable that as a result of this law, hundreds of thousandsof college students will for the first time have access to basic informationabout criminal incidents that off-campus law enforcement agencies have beenproviding to the public for years,” said Goodman. The Student PressLaw Center is encouraging student journalists to begin demanding accessto campus police and security logs, which most schools already maintainbut some refuse to make public, as soon as possible.
The second most noteworthy change regarding campus crime reporting relates to the secrecy of campus judicial proceedings. The new law says that schools cannot use the Family Educational Rights and Privacy Act (FERPA), commonlyknown as the Buckley Amendment, as a justification for refusing to releasethe outcome of campus disciplinary proceedings in which students have beenaccused of a crime of violence or a non-forcible sex offense. Although thisprovision does not require such records to be released, most public schoolswill be required to do so because of the requirements of their state openrecords laws. [Sec. 951, page 265.] The legislation also allows schoolsto disclose to a student’s parent or guardian the fact that the studenthas been found in violation of a law or school policy relating to alcoholor drug use if the student is under 21. [Sec. 952, pages 265-266.]
“Schools can no longer use FERPA as an excuse for covering up crimesof violence and sex offenses,” Goodman said. “But this legislationdoesn’t go far enough. Many schools will still use FERPA to hide the detailsof embezzlement, theft and a host of other non-violent crimes by dealingwith them in these internal campus disciplinary proceedings. Campus crimeshould be treated no differently than off-campus crime; the public has theright to know about every criminal incident.”
The SPLC is encouraging student journalists to begin asking for disciplinaryrecords relating to crimes of violence and non-forcible sex offenses immediately,and notes that the change in the law will require most public schools toprovide information from past disciplinary incidents as well as those thatoccur from this point forward. The Center will help student media organizationsenforce their right of access in the courts if necessary.
Crime StatisticsThe 1990 Campus Security Act, which requires schools to report crime statisticsfor the previous calendar year by September 1 of each year, was also amendedto require more information be reported. The new law would require schoolsto add two new categories of crime statistics to those that must be released:manslaughter and arson. (Murder, sex offenses, robbery, aggravated assault,burglary and motor vehicle theft statistics are already required to be reported.)In addition, schools would have to provide statistics for those arrestedor referred for discipline for liquor law, drug or weapons possession violations.And these incidents, as well as any crimes in categories not mentioned thatinvolve bodily injury, must be categorized as “hate crimes” whenthe victim was selected because of his actual or perceived race, gender,religion, sexual orientation, ethnicity or disability.
The statistics provisions also require schools to report not just thosecrimes that occur on campus, but also those that occur in non-campus buildingsor on property used for educational purposes as well as public propertyadjacent to campus. The statistics must be broken down based on which ofthese different locations they occurred.
As in the past, schools must make these statistics available to currentand prospective students as well as campus employees. However, the law willnow require the U.S. Department of Education to collect the statistics andmake them available to the public as well. By September 1, 2000, the Departmentis required to provide a report on the statistics to Congress. [Sec. 486(e),pages 169-171.]
For both the crime statistics and crime logs provisions in the new law,the Department of Education is required to report to Congress those institutionsthat are found in noncompliance. The Department can withdraw all federalfunding from institutions that fail to provide accurate information or imposepenalties of up to $25,000 per violation. [Sec. 486(c)(13), pages 171.]Although the legislation will take effect once the President signs it, therewill probably be a “grace period” before the Department of Educationthreatens punishment of a college or university for failing to comply withthe law. However, schools should make reasonable efforts to comply withthe law’s provisions immediately. The Congressional Conference CommitteeReport “strongly encourage[s]” the Department of Education toenforce the provisions of the law and “to penalize those schools thatdo not comply with the reporting requirements.” [Pages 363-364.]
“The real impact of these provisions will depend on how the Departmentof Education enforces them,” said Goodman. “Unfortunately, theDepartment has yet to demonstrate any inclination to get tough on schoolsthat hide campus crime. I hope that this Congressional encouragement willprovide an opportunity for the Department to demonstrate it is no longerthe lap dog of those college administrators more concerned about their school’simage than the safety of their students.”
Drug and Alcohol Prevention Programs
Although existing statutes require schools to adopt a drug and alcoholuse prevention program, the new law requires schools to “certify”to the Secretary of Education that adoption and to review the program everytwo years. Copies of the certification and the review must be made availableto the public on request. [Sec. 101 (sec. 120 of Title I, Part B), pages18-22.]
Other Public Reporting Requirements
On a non-crime related topic, the new legislation expands the requirementsregarding what kind of information schools must provide relating to collegesports. In addition to providing total revenues and expenses for intercollegiateathletic activities, schools must break down revenues and expenses for football,men’s basketball, women’s basketball, all men’s sports combined and allwomen’s sports combined. This information must be made available on requestto current and prospective students. [Sec. 486(f), pages 172-173.]
Schools will now also be required to disclose to the Department of Educationany foreign gifts received over $250,000. That report must be open to publicinspection and copying. [Sec. 101 (sec. 117 of Title I, Part B), pages 14-17.]
And beginning with information from the 2000-2001 school year, the Departmentof Education will be required to collect and compile data from schools ontuition charged, cost of attendance, average amount of financial assistancereceived and number of students receiving financial assistance. The Departmentis required to make this data available in a form that is “easily understandableand allows parents and students to make informed decisions on the costsfor typical full-time undergraduate students.” Schools that fail toprovide accurate information to the Department on these matters can be finedup to $25,000. The Commissioner of Education Statistics will conduct a studyof expenditures at colleges and universities and file a report with Congressby September 30, 2002. [Sec. 101 (sec. 131 of Title I, Part C), pages 23-26.]
In addition to the freedom of information provisions, the new law includestwo sections regarding freedom of expression. One provides support for studentpress freedom and one could threaten it.
The first provision says that no student attending a college or universityshould be sanctioned or punished in any way for participating in speechor association that would be protected by the First Amendment if the institutionwere covered by the First Amendment. In other words, private schools wouldbe held to the same limitations as public schools. “Speech” wouldpresumably cover student expression in the pages of a student publicationas well as verbal expression. Thus a student editor or columnist could notbe punished for writing an article that was unpopular or offensive to schoolofficials. [Sec. 101 (sec. 112 of Title I, Part B), page 12.]
The second provision relates to alcohol abuse on campus, and says that collegesand universities should adopt policies limiting the advertisement of alcoholicbeverages on campus. An aide to Sen. Joseph Biden, D-Del., who sponsoredthe language, said the provision was not intended to apply to the studentmedia. But free press advocates fear that some campus officials will attemptto use the language as justification for restricting alcohol advertisingin the college press. At least at public schools, such efforts would directlyconflict with the First Amendment protections afforded college journalists.[Sec. 101 (sec. 119 of Title I, Part B), page 17.]
Both of these free expression items are “sense of Congress” provisions,meaning that they are only recommendations and include no formal penaltiesfor schools that fail to comply with their requirements. However, administratorslooking for guidance as to what will make Congress happy (and continue federalsupport for higher education) might be expected to be sensitive to theserequests and make some effort to meet the requirements.
“As positive as it is that Congress has voiced its support for studentexpression, I’m disturbed that it so blithely encouraged schools to censoradvertisements,” said Goodman. “The Supreme Court has made clearthat alcohol advertising is protected by the First Amendment. Most collegestudent publications have adopted their own policies to ensure responsiblealcohol advertising. But the fact remains, on most campuses, the vast majorityof a publication’s readers are of legal drinking age and have as much rightto see these ads as those for any other legal product or service.
“We strongly believe that student editors and advertising managershave the right to determine the content of their own publications,”said Goodman. “And the Student Press Law Center, as always, is preparedto help student publication staffs take their schools to court if administratorsinterfere with that freedom.”