In the Fall of 1962, President Kennedy sent U.S. Marshals to the University of Mississippi to protect James Meredith, the first African-American student to matriculate at “Ole Miss,” as he faced a riot aimed at stopping him from entering the Oxford campus. Today, nearly a quarter of the university’s students are minorities and a statue of Meredith has been erected as a symbol of the university’s progress.
Sometime during the early morning hours of February 16, 2014, Meredith’s statue was defaced. A noose was tied around its neck and a Georgia state flag with the Confederate battle symbol was draped over its face. Three freshmen were implicated and expelled from their fraternity, while the university is proceeding with disciplinary action. In addition, the FBI is investigating the incident to determine if this was a hate crime intended to intimidate African Americans.
Racially motivated hate crimes are not confined to southern states. At San Jose State University in California, an African-American freshman was subjected to “disturbing racial indignities” by his white roommates, including fastening a bicycle lock around his neck and displaying the Confederate flag in their dorm room. The victim has filed a $5 million claim against the university, alleging that the dormitory adviser ignored warning signs of a potentially dangerous situation, and four of the roommates have been charged with hate crimes and battery.
Both cases remind us not only that ugly prejudices still exist on today’s college campuses but also that hate crimes such as these are covered by the Clery Act’s reporting requirements. The Clery Act requires every postsecondary school that participates in federal student aid programs to prepare an Annual Security Report that is made available to enrolled and prospective students. These reports provide information about campus safety so that students and their families can make informed decisions about where to pursue higher education. The “Clery crimes” that must be reported range from murder and sexual assault to auto theft and arson.
Effective October 1, 2013, the Violence Against Women Reauthorization Act of 2013 amended the Clery Act reporting requirements. Prior to October 1, 2013, the Clery Act defined hate crimes as those that involved prejudice based on race, gender, religion, sexual orientation, ethnicity, and disability. Starting with the Annual Security Reports due on October 1, 2014, hate crime statistics include two additional types of prejudice: national origin and gender identity.
Hate crime statistics also include these crimes which are not reported under other categories: intimidation, larceny-theft, simple assault, and crimes involving property damage and personal injury. It should be noted that the VAWA of 2013 added these new Clery crimes, which would also be reported as hate crimes if they were motivated by prejudice: sexual assault, domestic violence, dating violence, and stalking.
The new reporting requirements are raising questions about how to count these crimes, and the Department of Education’s Rulemaking Committee is working on regulations to explain compliance, addressing issues such as how to:
- define the new crimes
- count and disclose statistics for these offenses
One of the subcommittees has posted Issue Paper #1, which describes the current discussion around how to define new offenses. For example, it is unclear what definition of sexual assault should be used since the FBI’s definition of sex offenses has changed but the 2013 VAWA amendments didn’t reflect those changes.
One important question addressed by Issue Paper #2 is how to count a single reported incident that falls into multiple categories. Examples of how hypothetical incidents might be counted under different interpretations of the VAWA amendments were submitted by one of the negotiators on the Rulemaking Committee to illustrate the problem.
Counting stalking incidents has also raised questions, including: does the course of conduct count as multiple stalking incidents or one incident, and how do you determine where the crime occurred?
On May 29, 2013, the Department of Education issued a memorandum, stating that:
[F]inal regulations to implement the statutory changes to the Clery Act will not be effective until after the Department completes the rulemaking process … The Department expects that institutions will exercise their best efforts to include statistics for the new crime categories for calendar year 2013 in the Annual Security Report due in October of 2014.
The January 2014 White House Report on Rape and Sexual Assault told us that “the Department of Education is engaging in negotiated rule-making with the goal of publishing a final rule by November 2014.”
In the meantime, schools will need to make their best effort at compliance until these questions are answered. We’ll follow the rulemaking proceedings and pass along information as it becomes available, trying to shed light on what constitutes “best efforts” to report these new crime statistics.