2010-12-15 08:01:55 by admin
In 1990, Congress enacted the Crime Awareness and Campus Security Act (CACSA), a law that requires officials at all colleges and universities to implement policies concerning security and access to campus facilities; procedures for students and others to report crimes; and programs to inform students about the prevention of crimes, the relationship between campus security and local law enforcement, and collection and reporting procedures for criminal offenses.
The duty to report crimes applies to officials on campuses and at facilities owned by institutions of higher learning as well as to public property such as sidewalks, streets, or parking lots that are in the reasonably contiguous area of campuses. The crimes that must be reported include homicide, murder and non-negligent manslaughter, negligent manslaughter, sex offenses whether forcible or nonforcible, robbery, aggravated assault, burglary, motor vehicle theft, manslaughter, arson, and arrests of persons referred for disciplinary action involving liquor law violations or weapons possession (Institutional Security Policies and Crime Statistics Regulations (Regulations), 34 C.F.R. § 668.46 (c)) (CACSA), § 1092 (f)(2)(F)(i)). If institutions have more than one campus, then reporting must be done separately for each campus (Regulations, § 668.46 (d)).
The requirements for reporting crimes to students are comprehensive. In addition to reporting the numbers of crimes per category listed above, higher education authorities must report crimes by category of prejudice if victims appeared to have been intentionally selected because of their actual or perceived race, gender, religion, sexual orientation, ethnicity, or disability (Regulations, § 668.46 (c)(3)). Crimes must be reported by the locations where they occurred, specifically on campus, in student dormitories or other residential facilities, in or noncampus buildings or properties, or on public properties (Regulations, § 668.46 (c)(4)). Reporting statistics must be done using the Federal Bureau of Investigation’s Uniform Crime Reporting Handbook (Regulations, § 668.46 (c)(7)).
Higher education officials are permitted to use maps as a means of reporting crime areas as long as the maps accurately “depicts its campus, noncampus buildings or property, and public property areas” (Regulations, § 668.46 (c)(8)). Finally, officials at higher education institutions are required to make “a reasonable, good faith effort to obtain the required statistics” from local or state police agencies, and, as long as the request is made in good faith, “It is not responsible for the failure of the local or State police agency to supply the required statistics” (Regulations, § 668.46 (c)(9)).
Educational institutions also have a preventive function under CACSA. This duty requires officials to provide timely warnings of crimes reported to campus security authorities as well as any activities “considered by the institution to represent a threat to students and employees” (Regulations, § 668.46 (e)(1)(iii)). However, “an institution is not required to provide a timely warning with respect to crimes reported to a pastoral or professional counselor” (Regulations, § 668.46 (e)(2)).
The regulations incident to CACSA require that institutional annual security reports include more than crime statistics. More specifically, these reports must include
On a final note, the Crime Awareness and Campus Security Act expressly denies a private cause of action to individuals to enforce its provisions (CACSA, § 1092 (8)(c)).
Congress enacted the Campus Sex Crimes Prevention Act (CSCPA) in 1994 as part of the Violent Crime Control and Law Enforcement Act. Also referred to as the Jacob Wetterling Crimes Against Children and Sexually Violent Offender Registration Program Act, this act applies to sexual offenses against any full-time or part-time students “in any public or private educational institution, including any secondary school, trade, or professional institution, or institution of higher education” (CSCPA, § 14071 (a) (3)(G)).
Under the provisions of the CSCPA, any persons required to register as sex offenders under state laws as having committed
must, among other requirements of their “release, parole, supervised release, or probation” (CSCPA, § 14071 (b)),
In response to these federal statutes, many states now require that the names of sex offenders be entered on the Internet. In Smith v. Doe (2003), the U.S. Supreme Court upheld the constitutionality of Alaska’s Sex Offender Registration Act (SORA, 1994), which required sex offenders to register and which placed their names on the Internet. In Smith, the Court was of the opinion that applying Alaska’s registration statute to two persons who had been released from prison prior to the state statute’s enactment did not violate the Constitution’s Ex Post Facto Clause, because the requirement to register was civil rather than criminal in nature. In a companion case to Smith, Connecticut Department of Public Safety v. Doe (2003), the Court rejected the Fourteenth Amendment Liberty Clause and Due Process claims of a convicted sex offender who objected, on the ground that he considered himself no longer to be dangerous, to a state agency posting his name on the Internet. As to the Due Process Clause claim, the Supreme Court observed that
due process does not entitle [plaintiff] to establish a fact—that he is not currently dangerous—that is not material under the statute. . . . The law’s requirements turn on an offender’s conviction alone—a fact that a convicted offender has already had a procedurally safeguarded opportunity to contest. (p. 7)
Similarly, in Connecticut the Supreme Court found that because mandatory reporting of all sexual offenders for 10 years did not amount to stigmatization under the Liberty Clause, it did not entitle a claimant to a name-clearing hearing. Subsequently, the Ninth Circuit, in Doe v. Tandeske (2004), applied the rationale from Connecticut in pointing out that persons who have been convicted of serious sex offenses do not have a fundamental right protected under the Due Process Clause to be free from the registration and notification requirements set forth in the Alaska Sex Offender Registration Act.
Other federal appellate courts have supported stringent registration requirements. In Doe v. Smith (Doe, 2005), the Eighth Circuit upheld an Iowa statute that forbade registered sex offenders from residing “within two thousand feet of the real property comprising a public or nonpublic elementary or secondary school or a child care facility” (Iowa Code, § 692A.2A(2)). To the extent that postsecondary institutions have day care facilities on campus for the children of employees and students, statutes such as those in Iowa would be applicable, at least within the Eighth Circuit. The Eleventh Circuit, in Doe v. Moore (Moore, 2005) upheld a comprehensive Florida registration statute (Fl. Stat. Ann. § 943.043, 944.406) that requires fingerprints, photo, and a DNA sample, with the photo and description being placed on the Internet.
Most recently Congress amended the Family Educational Rights and Privacy Act specifically to permit postsecondary institutions to disclose information regarding registered sex offenders provided to those institutions under state law. FERPA declares that nothing in the statute prevents the disclosure of any information provided to the institution pursuant to the CSCPA. Although not expressly addressed in the federal statutes, where information about specific sex offenders has been made public through release to the Internet, postsecondary institutions, arguably, would seem to have a duty to make students aware of offenders on campus. In balancing the benefits to convicted sexual offender felons who would like to pursue an education in postsecondary institutions and the rights of other students in those institutions to be informed of the presence on campus of those offenders, the balance has been struck in states to require information about sex offenders to be made public. The multitude of privacy issues on campuses makes the CSCPA even more remarkable.
The elements of a crime prevention checklist prepared by Nathan Roberts, Richard Fossey, and Todd DeMitchell in Contemporary Issues in Higher Education Law (2005) are worth noting in terms of the guidance that they can provide for officials at colleges and universities. According to these authors, campus security plans should be comprehensive; they should
Ralph D. Mawdsley
See also Clery Act