NOTE:this article appeared in the spring 1997 ASJA Newsletter

THE PROPOSED "ACCURACY IN CAMPUS CRIME REPORTING ACT OF 1997"

RADICAL STIRRINGS IN CONGRESS

By Thomas R. Baker, University of Iowa

        How quickly the political winds have changed. Just two years ago, Congress pledged to return power to the states and resist the temptation to impose unfunded mandates. One year ago, in the preliminary stages of the 1996 election, a multitude of presidential aspirants vowed to eliminate the Department of Education altogether.

        Despite the rhetoric, several members of Congress recently proposed a bill - referred to as the Accuracy in Campus Crime Reporting Act of 1997 (ACCRA) - which would drastically usurp the authority of post-secondary institutions through the power of the federal purse. ACCRA sponsors propose to change the fundamental nature of campus disciplinary proceedings. Both private institutions and public universities would be affected by ACCRA.

        ACCRA is no ordinary anti-crime mandate of the type seen in the past (e.g. The Student Right-to-Know Act & Campus Security Act of 1990). If passed into law, ACCRA would go so far as to establish minimum financial penalties for non- compliance. Furthermore, by mandating public access to student record information, ACCRA would effectively pre-empt state confidentiality laws in many jurisdictions. In short, it would bestow upon the Department of Education powerful new authority to regulate post-secondary institutions.

                          THE BACKGROUND OF A.C.C.R.A.

        ACCRA was introduced February 12, 1997 in the House of Representatives by John Duncan of Tennessee and is designated H.R. 715 (105th Session of Congress). ACCRA was drafted by the three chief organizational sponsors of the bill: Security on Campus (based in Pennsylvania and Tennessee), the Student Press Law Center (based in Tennessee), and the Society of Professional Journalists.

        The amendments would take effect in 1998. A complete version of ACCRA can be found by accessing the Legislative Issues section of the ASJA Web Site http://asja.tamu.edu/.

                          THE COMPONENTS OF A.C.C.R.A.

        Five new crime categories (manslaughter, larceny, arson, simple assault, and vandalism) would be added to the list of ten published crimes required by the Campus Security Act of 1990. In regard to crimes against students which occur off- campus, ACCRA does not expand the geographic scope of the Campus Security Act beyond the current definition of campus.

        Section 2 of ACCRA contains a provision which would include counselors, housing officials, and disciplinary officers within the definition of "campus security authorities."   ACCRA would also require that all "incidents of" liquor law violations, drug violations, and weapons possessions be reported in lieu of "arrests" (the present language). The word "incidents" is not defined in the bill. The "incident" reporting requirement, when combined with the re-definition of "campus security authorities," would apparently incorporate within the campus crime statistics many student disciplinary infractions not known to law enforcement officials.

        Section 2(g) of ACCRA would amend the Higher Education Act of 1965 to mandate open "disciplinary proceedings" where criminal misconduct is alleged regardless of whether criminal charges have been filed. In addition, all records of such disciplinary proceedings would be open to public inspection. "Disciplinary proceeding" is not defined in the bill.

        In the process of investigating complaints, ASJA members often conduct informal interviews with complainants, witnesses, and accused students in order to determine the facts of a case. One might well ask whether such interviews would trigger the open meetings and records requirements of ACCRA if the allegations might constitute a crime. ACCRA also fails to clarify how law enforcement investigations would be affected.

        As the bill currently reads, non-compliant colleges are to suffer mandatory financial penalties but cannot be sued directly by citizens. "For each separate count of non- compliance," states Section 4 of ACCRA, "the Secretary shall suspend not less than one percent (1%) of the financial assistance provided by the Department."   Since the all- important term "separate count" is not defined in ACCRA, the mathematics of non-compliance could easily become arbitrary. Furthermore, the various sources of funding which would be affected - e.g. financial aid, grants, etc. - are not specified in the bill.

                      IMPLICATIONS FOR JUDICIAL AFFAIRS

        If the Accuracy in Campus Crime Reporting Act of 1997 is passed into law as it currently reads, the administration of college student discipline will be drastically altered, at private colleges as well as public institutions. Not only will most disciplinary hearings become open to the public, so will internal disciplinary proceedings and all records related to those proceedings. Considering the potentially harsh mandatory penalties for non-compliance, one might expect that the administration of student discipline will become more legalistic at the expense of its underlying educational purpose. One might also expect more lawyers to become involved in the administration of student discipline.

        Student conduct codes are not natural counterparts to criminal codes, nor should they be. Under ACCRA, however, the open meetings and records provisions are driven by criminal law definitions. Take for example a hazing case where a fraternity member is accused of forcing a pledge to consume shots of liquor. Even if the intent of such behavior was not harmful, a college could presumably adjudicate this complaint under its disciplinary process using a common sense notion of hazing which prohibits reckless or dangerous behavior. But under ACCRA, the criminal law definition would control whether the disciplinary proceeding would be open to the public. And if the state code only prohibits hazing behavior where the member intended to injure the pledge, then the complaint would remain closed under FERPA.

        Aside from the difficulty of measuring a student's intent, school officials will be forced to judge for themselves how the criminal element of intent is to be applied to the facts of the case. Query:   if the hazing statute applies only to intentional conduct, what conduct must be intentional -- the forced consumption or the subsequent injury? The applicability of the element of intent may not be apparent on the face of the criminal statute.

        When considering the discrepancies between criminal law and conduct codes, one should keep in mind that ACCRA would open records and hearings at the initial point of the college's investigation, prior to the resolution of a complaint. Thus, if ACCRA becomes law, student affairs officials will be required to pre-judge each case as "criminal" or "non-criminal" before the actual facts are ascertained. A college official might in good faith open a disciplinary case to public inspection only to learn later that it was in reality non-criminal behavior subject to the protection of FERPA.

        With respect to the rights of other students whose names appear in various reports as complainants, witnesses, etc., colleges will presumably be expected to respect their FERPA rights while complying with the open-records provisions of ACCRA. The enormous amount of redacting (i.e. blacking-out editing of documents) generated by ACCRA may force student affairs officials to call upon legal advisors for assistance day in and day out.

        Despite the intent of the bill's sponsors to reduce campus crime, one might expect that the open-meetings provisions will have drastic consequences upon the level of cooperation by witnesses. AACRA may also deter students and faculty from serving as panel members. A spokesperson for the International Association of Campus Law Enforcement Administrators (IACLEA) has expressed reservations about the likely chilling effect of ACCRA. In the February 21 Chronicle of Higher Education, Doug Tuttle, the past president of the IACLEA, underscored his concerns about increased publicity and victims being discouraged from reporting offenses, particularly sexual offenses.

        Practical problems are also paramount with regard to the proposed re-definition of "campus security authorities." ACCRA would greatly expand the definition to include several types of student affairs counselors who speak with students in strict confidence.

        In summary, ASJA members should note with concern the radical implications of ACCRA upon judicial affairs administration and the multitude of practical problems it raises. Specifically, ACCRA's open meetings provision can be expected to (1) compromise the educational purpose of student discipline; (2) discourage crime victims from filing disciplinary complaints; (3) increase the likelihood that witnesses will not appear at hearings; (4) compromise the role of counselors who provide private therapy to students; (5) complicate attempts by law enforcement authorities to investigate crimes allegedly committed by students; (6) jeopardize the privacy rights of ordinary students not accused of criminal activity whose names may appear in incident reports defined as public in Section 3 of the bill; and (7) require significant new sources of funding to implement.

                            WHAT'S AHEAD IN CONGRESS

        The ASJA leadership is committed to participating in the ACCRA discussion in Congress. Given the broad implications of the bill, ASJA will likely find allies in other affected professional organizations (e.g. IACLEA, AACRAO, ACUHO-I, NASPA, and ACPA). ASJA members should be aware, however, of the possibility of the legislation being passed quickly without committee hearings. I encourage you to contact your representatives directly and express your concerns, as well as inform your institutional presidents, deans, legal advisors, and lobbyists. ASJA may consider a nation-wide mail lobbying campaign if the legislation is passed quickly before the student affairs community recognizes what is happening.

        As of March 14, ACCRA was co-sponsored by 29 members of Congress, including both Republicans and Democrats, liberals and conservatives, minorities and whites, women and men. The bill has been referred to the House Committee on Education Workforce chaired by Bill Goodling (PA), who sponsored the Campus Security Act of 1990.

        Hearings are likely to be conducted by the Subcommittee on Postsecondary Education, Training, and Life-Long Learning, which conducted hearings on various campus security issues in the summer and fall of 1996. The Subcommittee is chaired by Howard McKeon (CA) and consists of 27 members, including Goodling, Petri, Roukema, Barrett, Greenwood, Graham, McIntosh, Schaffer, Peterson, Castle, Riggs, Souder, Upton, Deal, Kildee, Andrews, Roemer, Woolsey, Romero-Barcelo, Blumenauer, Hinojosa, McCarthy, Tierney, Kind, Sanchez, and Ford.

        Given the various components of ACCRA, ASJA members should pay particular attention to the way in which this proposal is characterized as it progresses through the various stages in the legislative process. If members of Congress focus primarily upon issues related to crime statistics, student affairs organizations should undertake a concerted effort to highlight the open-meetings provision and its likely detrimental effects on the reporting of campus crimes, not to mention the educational process itself.