Shedding light on campus crime

Dec 1, 1997 12:00 PM, KATE DOHERTY

The Student Right-to-Know and Campus Security Act of 1990 sought to improve security and safety at colleges and universities, in part, by instituting campus crime reporting requirements. In the seven years since, the Act has increased attention and resources devoted to campus crime, but it has sparked debate over what crimes should be reported when. It has also opened a new can of worms: charges of purposeful underreporting of crime by schools. The Accuracy in Campus Crime Reporting Act, a proposed amendment being considered by the U.S. House of Representatives, takes aim at underreporting of crime.

Congressman John Duncan (R-Tenn.), who introduced the amendment in February with CongressmanCharles Schumer (D-N.Y.), says it would "close some of the loopholes that have allowed many colleges and universities to not report many instances of criminal activity on their campuses."

But school administrators question some provisions of the bill, which present confidentiality problems for crime victims, they say. Bill supporters say the same provisions are imperative for crime victims.

The Act is currently before the Education and Work Force Committee, and a spokesperson for Congressman Duncan's office indicates it has a good chance of passing - either as an independent bill, or in conjunction with reauthorization of The Higher Eduction Act. Provisions of the amendment would become effective Sept. 1, 1998.

If the amendment were to pass with its provisions intact, implications for crime victims would be uncertain. But the implication for schools is clear: Campus safety and security would be brought under even closer scrutiny, making the security function ever more visible and valuable.

Between a rock and a hard place Adam Thermos, a consultant and president of Strategic Technology Group, Milford, Mass., says the reason some schools do not comply with crime reporting requirements can be likened to banks: "Who wants to deposit money in a bank that had a break-in last night?

"The predicament of colleges is they stand on two different legs," he adds. "In one regard they are like parents, and in the other, they have the due diligence obligation to provide a reasonably safe, secure environment in which learning can take place."

Historically, the reporting requirement has been complicated by interpretation. Some administrators point out that much "campus" crime actually happens off-campus, and is therefore not required to be included in campus crime reports. Critics may be missing this fundamental but tricky reporting distinction.

Other administrators point to confusion over interpretation of the Family Education Rights and Privacy Act (FERPA) as a culprit in perceived underreporting.

But critics charge that some underreporting has been intentional - an attempt to keep criminal matters "within the family" under the guise of privacy laws protecting educational records - in the self-serving interest of good public relations for colleges and universities.

Thermos says it is counterintuitive to schools and to the psychology of administrators to admit that values [such as are associated with committing crimes] are reflected in the student population.

The proposed Accuracy in Campus Crime Reporting Act seeks to eliminate room for interpretation of reporting requirements by: - specifying that crime allegations handled in internal disciplinary proceedings are not protected by FERPA; - opening internal disciplinary proceedings; - compelling school counselors and deans to report all alleged crime incidents reported to them; and - opening campus police logs.

On-campus vs. off-campus crime

Though neither the Campus Security Act nor the proposed amendment requires off-campus crime to be reported in a school's crime report, off-campus crime can nonetheless exacerbate the reporting problem for schools.

The University of Pennsylvania is a case in point. The school has reportedly come under scrutiny for failing to report crimes that happen on walkways between campus buildings, according to an article in the Nov. 10, 1997, edition of The New Republic. The article alleges that UPenn omitted from its crime report the shooting of Patrick Leroy, a senior who was shot on one of the main walkways through campus on September 25, 1996.

According to Chris Algard, director of security at UPenn, the shooting was not included in the campus crime report because it did not happen on campus.

"We are in a city," he explains. "City streets go through campus. In fact, there is a state highway that goes through campus. And if a crime takes place on a city street or on that highway, it's off campus."

And it can get even trickier.

"For example," says Algard, "if the school property line is the perimeter door and a crime happens on the street right in front of that perimeter door, the street belongs to the city, and the door belongs to the university, so who counts the crime?"

UPenn records both on-campus and off-campus crime affecting UPenn students, says Algard, because though most crime affecting UPenn is not on school property, crime surrounding the campus impacts the overall public safety environment.

"We accurately report and track both on- and off-campus crime, but we are following the letter of the [reporting] law in terms of what on-campus is."

Algard says that though the reporting requirement is valuable in that it gives school administrators a way to analyze incidents and problem areas and guide implementation of a security and safety plan, it can be confusing in terms of how schools draw circles around their properties.

"Not many schools are designed alike; urban and suburban campuses are very different," he points out. "So it's difficult to compare reporting statistics among schools. In order for campus crime reports to be used as an accurate benchmark of where it is safest to go to school, those reports must be based on an apples-to-apples comparison," he says.

Boston's Northeastern University is another large, urban campus where the on-campus/off-campus distinction can complicate crime reporting, says D. Joseph Griffin, director of public safety at Northeastern and past president of the International Association of Campus Law Enforcement Administrators (IACLEA).

"We include in our statistics those crimes that occur off campus that we're aware of, have knowledge of, and which involve students," he says. "In an urban environment, it's extremely difficult to gather those statistics from the local police department - especially in a city such as Boston where we have multiple police jurisdictions."

Griffin explains that the Northeastern campus is divided by two of the Boston Police Department's major districts. Also, cutting down the middle of each side of the campus is the metropolitan transit system, which is covered by the transit police, and, in addition, park land on one side of campus is covered by the State Police.

"Depending on where the crime took place and depending on whether the victim identifies him/herself as a Northeastern student - and, in most cases, they don't - it's very difficult to get the crime information and to assess its accuracy," he says.

Northeastern also has its own police force, which annually requests a report from the Boston police on what crimes have been reported to them involving Northeastern students.

What is protected information? Not all provisions of The Accuracy in Campus Crime Reporting Act are at issue. The broadening of crime categories to include manslaughter, larceny, arson, simple assault and vandalism and the opening of police logs, for example, have not encountered resistance.

But another provision of the Act - that criminal allegations handled internally should not be protected by FERPA, based on the assertion that FERPA protects only educational records - has sparked debate.

Jennifer Markiewicz, former editor of the student newspaper at Miami University, Oxford, Ohio, and current law student, supports that provision of the bill, saying that attributing reporting complications to interpretation of FERPA is an excuse for incompleteness and inconsistency on the part of university administrators.

Markiewicz probably knows more than the average student about crime reporting issues because of her experience at Miami University. As she relates it, she requested statistical information on disciplinary hearings from the university administration for inclusion in a database to be used to track crime on campus, and the university refused to give her the complete records, claiming FERPA protection of certain of them.

Richard Little, an administrator at Miami University, says the school released only partial information, because it understood federal law to protect information that could personally identify students. He says the school withheld only statistical information that possibly could have personally identified students, but otherwise provided as much information as pos sible.

Markiewicz says she later filed a suit seeking access to the records under the Ohio Public Records Act and won; the Court found that disciplinary records are not protected by FERPA.

Little, however, mentions that following the court decision, the school received a letter from the U.S. Department of Education saying it felt the Ohio Supreme Court's decision was wrong as a matter of law. The school has since appealed the decision to the U.S. Supreme Court.

Additionally, Markiewicz claims to have obtained evidence that the university underreported the number of on-campus rapes over a five-year period - evidence that precipitated the Department of Education's finding that the school had violated the Campus Security Act on a number of counts.

Little concedes that the school has been found to be in non-compliance with the Act, but he says the underreporting charge was arrived at based on an invalid comparison. He says Markiewicz compared the school's official crime report - which is only required to include criminal allegations brought to university police and judicial affairs - with a document the school compiles to survey allegations of crime made to various university and local departments and officials.

He adds that the document is prepared by the school and provided to students in an effort to promote crime awareness. The irony is that "in the effort the university has made to better inform people, we have been criticized," says Little.

When does crime reporting go too far? Dr. Thermos contends that where schools first went wrong was creating academic courts in the first place.

"It was a mistake to allow serious crime such as attacks, assaults and rapes to be adjudicated in internal disciplinary proceedings by deans and provosts, rather than in a court of law," he says.

But since matters of campus crime are commonly resolved in such internal disciplinary hearings, the Accuracy in Campus Crime Reporting Act seeks to open the hearings to the public.

Markiewicz supports that provision, calling it the most important one in the Act.

"We're not talking about lying and cheating here," she says. "We're talking about situations in some universities where a rape charge can be brought down to 'abusive language to a woman'. There are no checks and balances in this system at all. These campus courts are the only closed courtrooms in America, and victims' rights are being violated."

Griffin, however, strongly objects to that provision of the Act, saying it would nullify any confidentiality expectation on the part of victims.

"I think it would be a real deterrent to victims coming forward if their identity and all the details of an incident - especially in cases of sexual assault and rape - could be captured by a newspaper reporter, or, even worse, broadcast on TV," he says.

He adds that the opening of disciplinary proceedings could also expose victims to intimidation from the accused and (usually his) cohorts.

Markiewicz believes the bottom line is students do not deserve special treatment. "It takes a very strong person to report a sexual assault in the first place and to go through the system. Opening the hearings would not create a circus of intimidation," she says. "Hearings would be governed by rules and regulations as in a court of law."

Griffin also objects to the provision including "counselors" in the list of campus officials who must report crimes reported to them, adding that he thinks it goes beyond the original intent of the law. "I think it does a great disservice to the university community, to counselors and to victims if a victim can't go to a counselor without fearing that confidentiality is going to be breached."

Markiewicz points out that the inclusion of the word "counselors" does not threaten students' confidentiality expectation, because the bill asks for crime statistics - not names.

The right to sue? Liability is a concern of every security director and administrator, so it is not surprising that one provision of the amendment has caused consternation among administrators. It would delete from the original legislation the words "nothing in this paragraph shall be construed to confer a private right to action upon any person to enforce provisions of this paragraph."

Dolores Stafford, director of the University Police Department at George Washington University, testified on behalf of IACLEA in a House hearing on the amendment in July 1997. She voiced concern over several of the amendment's provisions, but concluded by "strongly urging" the House not to create a private right of action against institutions. She pointed out that with the original language deleted, a university police officer erroneously classifying a burglary as a larceny could create a private right of action against the institution. She cautioned that granting such a right is "an invitation to frivolous litigation, which costs money and diverts attention from efforts to reduce crime on campus."

But S. Daniel Carter of Security on Campus Inc., Knoxville, Tenn., says Stafford is "100 percent wrong" in her assertion that deleting the paragraph could bring litigation on schools. He points out that the language was originally intended to apply specifically to the Sexual Assault Victims' Bill of Rights, and, he adds, that is all it applies to now. He says the language was not intended to address police logs, statistical disclosure, or anything of the sort.

Student safety is the bottom line If passed, The Accuracy in Campus Crime Reporting Act would raise the stakes of crime on campus and bring security policies and procedures under increased scrutiny.

Dr. Thermos suggests that the amendment could also dramatically increase the need of schools for security system upgrades - a need first created by the Campus Security Act, he adds. He points out that since that legislation was enacted in 1990, security systems on campus have increased exponentially.

Dean Art Gallagher of Brown University, Providence, R.I., agrees that the Campus Security Act has greatly impacted the enhancement of campus security. He notes that since installing an electronic card access system in 1994, Brown has seen a decrease in breaking and entering and in petty crimes in residence halls.

He hastens to add that most universities do not implement safety and security measures out of fear of statistical disclosure or litigation, but in the sincere interest of providing a safe campus.

The Student Right-to-Know and Campus Security Act of 1990 (CSA) requires colleges and universities receiving federal funds to report campus security policies and crime statistics for the most recent three years by September 1st of every year. It also affords equal rights to accused and accuser in sexual assault cases on campus. The report is required to be provided to all students and staff and to prospective students and staff upon request.

Statistics for the following crimes must be included in the annual report: - murder; - sex offenses; - robbery; - aggravated assault; - burglary; and - motor vehicle theft; as well as for arrests for: - liquor violations; - drug violations; and - weapons violations.

The Department of Education was charged with enforcing the statutes of the law and with issuing a status report on campus crime statistics by Sept. 1, 1995. The DOE missed the deadline, and, on Sept. 11, 1996, the U.S. House of Representatives passed by a vote of 413-0 H.R. 470, which "expressed the sense of the Congress that the Department of Education was not adequately monitoring and enforcing compliance with the current campus laws," according to Congressman John Duncan (R-Tenn.). The resolution called for stricter enforcement of the Campus Security Act.

In February 1997, the Department of Education came through with the report, satisfying the CSA mandate. (The report is available online at www.ed.gov/NCES/pubs/97402.html and by calling Bernie Greene at 202-219-1366.)

Soon thereafter, on Feb. 12, 1997, H.R. 715, The Accuracy in Campus Crime Reporting Act was introduced by Congressmen Duncan and Charles Schumer (D-N.Y.).

Specifically, H.R. 715 proposes the following amendments:

- In addition to campus security and law enforcement, "other campus officials, including administrators, deans, disciplinary officers, athletic department officials, housing officials, counselors or those to whom crimes are reported" must provide statistics for inclusion in a school's annual crime report.

- Crime categories would be broadened to include manslaughter, larceny, arson, simple assault and vandalism; and not only arrests for, but also incidents of, drug and alcohol violations must be reported.

- The annual report must be submitted to the Department of Education.

- Campus crime logs, including names and addresses of persons "cited or charged" except where protected by law, must be maintained and made public.

- Campus disciplinary proceedings and records of the same that involve criminal allegations must be open.

- Criminal allegations must not be protected by, Family Education Rights and Privacy Act (FERPA) based on the assertion they are not education records.

- The minimum penalty for non-compliance with the Act would be be 1 percent of total federal funding.

- Anti-retaliation provisions must be added.

- It deletes from the original language subsection 485 (f)(7)(C), which states that "nothing in this paragraph shall be construed to confer a private right to action upon any person to enforce provisions of this paragraph."

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