A new day in the battle for access
Higher Education Act could havemajor impact on campus media
WASHINGTON, D.C. — The fight to give the public more access to campus crime information got a shot in the arm after Congress passed 1998 amendments to the Higher Education Act.
The new version of the Act, which was enacted Oct. 7, contains several other student press-friendly amendments, including provisions on disciplinary records and freedom of expression.
The newly adopted act should allow student journalists the opportunity to enjoy more freedom to work, said SPLC Executive Director Mark Goodman.
“Congress has made some dramatic strides in ensuring that college and university students will have greater access to information they need about their schools,” Goodman said. “And the fact that Congress has finally voiced its support for student free expression is important.”
The following is a rundown of some of the changes the amendments have made.
Police and security logs
The most significant provision in the new law is the requirement that all colleges and universities create and maintain a log of criminal incidents reported to their campus police or security department and make that log open to the public. Although most public schools are already required to do this under state open records laws, private schools will be forced to provide similar information. In addition, the provision states that log entries must include the nature, date, time, general location and disposition of each complaint, and the report must be made available within two business days of being reported to the department or campus security authority. If new information about an entry becomes available to the campus authorities, it must be recorded in the log no more than two business days after it was first available. Authorities may exercise the option to withhold information only if “there is clear and convincing evidence that the release of such information would jeopardize an ongoing criminal investigation,” the act stated. “In the past, some but not all state universities routinely kept such logs and made them available to the press and public under state open records laws,” wrote William M. Lawbaugh, the Chair of the Society of Professional Journalists Campus Courts Task Force in Publisher’s Auxiliary. “Now, all colleges accepting federal funds must do so, and that includes just about every college in America.”
Another provision of the revamped act should give the public more access to campus disciplinary proceedings. Under the new law, schools cannot use the Family Educational Rights and Privacy Act (FERPA), also known as the Buckley Amendment, as a justification for refusing to release the outcome of campus judicial proceedings in which students have been accused of a crime of violence or a non-forcible sex offense. While the new changes do not require such records to be released, most public schools will be required to do so under the requirements of their state’s open records laws. In addition, schools can now release information to a student’s parent or guardian if the student has been found in violation of a law or school policy relating to alcohol or drug use if the student is under 21. The act should increase the public’s access to information about campus crime and court proceedings, but it does not go as far as it needs to, Goodman said. “Schools can no longer use FERPA as an excuse for covering up crimes of violence and sex offenses,” he said. “[But] many schools will still use FERPA to hide the details of embezzlement, theft and a host of other nonviolent crimes by dealing with them in these internal campus disciplinary proceedings. Campus crime should be treated no differently than off-campus crime.”
The 1990 Campus Security Act was also amended. The 1990 law, which requires schools to report crime statistics for the previous calendar year by Sept. 1 of each year, was changed to require schools to add manslaughter and arson to crime statistics that must be released. The two additional statistics join murder, sex offenses, robbery, aggravated assault, burglary and motor vehicle theft as reportable offenses. Furthermore, any crimes that involve bodily injury must be recorded in a separate category when the victim was selected because of perceived race, gender, religion, sexual orientation, ethnicity or disability. Under the new law, reportable offenses are not just determined by the crimes, but also by geography. The new provisions require schools to report not only those crimes that occur on campus, but also those that occur in non-campus buildings or on property used for educational purposes, as well as public property adjacent to a campus. Public property, under the act, includes “property that is within the same reasonably contiguous geographic area of the institution, such as a sidewalk, a street other thoroughfare, or parking facility….” The provisions will also require the U.S. Department of Education to collect the crime statistics and make them available to the public. In the past, schools were required only to make them accessible to current and prospective students, as well school employees. The U.S. Department of Education must present a report on the statistics to Congress by Sept. 1, 2000.
The Department of Education is required to provide Congress with a report on any schools that are found in noncompliance with the crime statistics and crime log changes in the new law. Institutions that are not in compliance risk up to a $25,000 penalty by the Department, or a complete withdrawal of federal funding. The Congressional Conference Committee Report “strongly encourage[s]” the Department of Education to enforce the new provisions of the law and “to penalize those schools that do not comply with the reporting requirements.” “The real impact of these provisions will depend on how the Department of Education enforces them,” Goodman said. “Unfortunately, the Department has yet to demonstrate any inclination to get tough on schools that hide campus crime.”
Other areas of public disclosure
Under existing statues, schools are required to adopt a drug and alcohol use prevention program. The new law takes it a step further, and requires institutions to “certify” to the Secretary of Education that adoption and to review the program every two years. Copies of the certification and the review must be made available to the public on request. Provisions in the new law also require schools to provide total revenues and expenses for intercollegiate athletic activities, as wells as a break down of revenues and expenses for football, men’s basketball, women’s basketball, all men’s sports combined and all women’s sports combined. Expenses for intercollegiate athletics include grants-in-aid, salaries, travel, equipment, and supplies. Schools must also disclose information to the Department of Education on foreign gifts that are received of $250,000 or more. The disclosure reports are then open to the public inspection and copying during normal business hours. In an effort to make improvements in market information and public accountability in higher education, the new provisions will also open up information on school expenditures. The Department of Education will be required to collect and compile data from schools on tuition charged, cost of attendance, average amount of financial assistance received and the number of students receiving financial assistance. Under the provision, the Department is required to make this data available in a form that is “easily understandable and allows parents and students to make informed decisions on the costs for typical full-time undergraduate students.” Schools that fail to provide accurate information to the Department on these matters can be fined up to $25,000. The Commissioner of Education Statistics will conduct a study of expenditures at colleges and universities and file a report with Congress by Sept. 30, 2002.
The new law also includes two sections regarding freedom of expression on campus. One provides support for student press freedom, while the other may threaten it. The first provision says that no student attending a college or university should be sanctioned or punished in any way for participating in speech or association that would be protected by the First Amendment if the institution were covered by the First Amendment. In other words, private schools would be held to the same limitations as public schools. The second provision relates to alcohol abuse on camps, and says that colleges and universities should adopt policies limiting the advertisement of alcoholic beverages on campus. An aide to Sen. Joseph Biden, D-Del., who sponsored the provision, said the language was not intended to apply to the student media. However, free press advocates fear that some campus officials will attempt to use the language as justification for restricting alcohol advertising in the college press. Such efforts would directly conflict with the First Amendment protections for college journalists – at least at public schools. Both of these free expression items are “sense of Congress” provisions, meaning that they are only recommendations and include no formal penalties for schools that fail to comply with their requirements. “As positive as it is that Congress has voiced its support for student expression, I’m disturbed that it so blithely encouraged schools to censor advertisements,” said Goodman. “The Supreme Court has made clear that alcohol advertising is protected by the First Amendment. “Most college student publications have adopted their own policies to ensure responsible alcohol advertising. But the fact remains, on most campuses, the vast majority of a publication’s readers are of legal drinking age and have as much right to see these ads as those for any other legal product or service.”
reports, Winter 1998-99