By: Lindsay Byers
October is a busy month for institutions that are subject to the Clery Act, as they begin releasing their safety reports. While many institutions, like UNC Chapel Hill, might be focused on the shocking uptick of reported sexual assaults on campus, Syracuse University is facing an additional issue. Syracuse students have voiced concern that the reports of hate and bias incidents on their campus don’t seem to reflect their actual experiences. Syracuse University and students certainly aren’t alone in this experience, and part of this may be due to the gray area the Clery Act creates between hate crimes which are reported, and bias incidents that go unreported.
1. Clery Act and Hate Crimes
The Clery Act requires colleges and universities that receive federal funding to publicly distribute an annual security report. This report must include statistics of campus crime dating back three calendar years, along with information on campus safety efforts and goals. The purpose of Clery is to protect students by compelling schools to be transparent about crimes on campus and accountable for taking steps to reduce those crimes.
However, Clery doesn’t require you to report every criminal offense. Clery details what crimes must be reported, including hate crimes. Hate crimes are defined under the act as criminal offenses that “manifest evidence that the victim was intentionally selected because of the perpetrator’s bias against the victim.”
Under Clery, murder and non-negligent manslaughter, sexual assault, robbery, aggravated assault, burglary, motor vehicle theft, arson, larceny-theft, simple assault, intimidation, and destruction/damage/vandalism of property all fall under the umbrella of hate crimes so long as they are motivated by bias.
2. Hate Crimes v. Incidents Involving Bias
While both hate crimes and incidents involving bias refer to actions that are motivated by discrimination and prejudice, they are distinguished legally. Incidents of bias, offensive speech, or biased speech do not, in themselves, constitute a hate crime. There must be both bias as well as a statutorily defined criminal offense in order to elevate an incident involving bias to the level of a hate crime. Not all incidents involving bias are hate crimes. However, the distinction between a hate crime and an incident involving bias is not always clear.
The specific acts that, when coupled with a motivation of bias, amount to a hate crime under Clery can blur the line between bias incidents and hate crimes. Some crimes included under the hate crime umbrella of Clery are not crimes under any other aspect of Clery. When motivated by bias, actions such as larceny, simple assault, intimidation, and destruction/damage/vandalism of property are hate crimes under Clery. However, absent a manifestation of bias associated with these actions, they are not Clery crimes at all.
3. First Amendment Impact
The additional crimes added to Clery create a gray area that may raise issues, specifically under the First Amendment. Since the additional crimes mentioned above only constitute a Clery crime when they are motivated by bias, the factors examined when considering if bias was the motivating factor in perpetrating the crime can be determinative. This results in a potential threat to students’ First Amendment rights, as many of these factors may be speech acts that are protected by the First Amendment.
The First Amendment protects even “heinous” speech. This includes the ability to express your opinions, even if offensive, because it is a central tenant of the freedom of expression. In other words, speech that is biased or hateful is protected under the First Amendment. Contradicting with this is that factors supporting a finding of bias under Clery include bias-related comments, markings, or words.
Moreover, this can cause a complete violation of the freedom of expression. Some argue that focusing on the motivations of the offenders is a violation of the First Amendment because it is punishment based on the biased thoughts of the offender.
Several questions arise about the intersection of Clery and the First Amendment: How do we square the importance of safety and the goals of Clery with the importance of protecting free speech on campuses? When considering an act’s classification as a hate crime under Clery, how do we square the actor’s freedom of speech, even if offensive, with the harm associated with bias incidents?
The lack of a statutorily defined criminal offense associated with a bias incident certainly does not mean the incident is not harmful to students on campus. Students also have a legitimate interest in being informed of bias incidents on their campus just like other crimes.
When hate speech occurs on college campuses, it is demeaning to a group of people and contradictory to the values of diversity and inclusion, though it may be protected by the First Amendment. Even though hate speech is protected under the First Amendment, it still interferes with students’ safety and college experience. Clery demonstrates the importance that reporting and being transparent about crimes can have on reducing those crimes. Because of this, I can imagine that campuses may begin to include bias incidents that are not Clery hate crimes in their safety reports. While this may help decrease bias incidents and increase total transparency on campuses, campuses must be sure their categorization of bias incidents do not interfere students’ freedom of speech.