By: Lindsay Byers <\/p>\n\n\n\n
October is\na busy month for institutions that are subject to the Clery Act, as they begin releasing\ntheir safety reports. While many institutions, like UNC Chapel Hill, might be focused\non the shocking\nuptick<\/a> of reported sexual assaults on campus, Syracuse University is facing\nan additional issue. Syracuse students have voiced\nconcern<\/a> that the reports of hate and bias incidents on their campus don\u2019t\nseem to reflect their actual experiences. Syracuse University and students\ncertainly aren\u2019t alone in this experience, and part of this may be due to the\ngray area the Clery Act creates between hate crimes which are reported, and\nbias incidents that go unreported.<\/p>\n\n\n\n 1. Clery Act and Hate Crimes<\/strong><\/p>\n\n\n\n The Clery Act<\/a> requires\ncolleges and universities that receive federal funding to publicly distribute\nan annual security report. This report must include statistics of campus crime dating\nback three calendar years, along with information on campus safety efforts and\ngoals. The purpose<\/a> of Clery is to protect students by compelling\nschools to be transparent about crimes on campus and accountable for taking\nsteps to reduce those crimes. <\/p>\n\n\n\n However, Clery\ndoesn\u2019t require you to report every criminal offense. Clery details what crimes\nmust be reported, including hate crimes. Hate crimes are defined<\/a> under the act as criminal offenses\nthat \u201cmanifest evidence that the victim was intentionally selected because of\nthe perpetrator\u2019s bias against the victim.\u201d <\/p>\n\n\n\n Under Clery, murder and non-negligent\nmanslaughter, sexual assault, robbery, aggravated assault, burglary, motor vehicle\ntheft, arson, larceny-theft, simple assault, intimidation, and destruction\/damage\/vandalism\nof property all fall under the umbrella of hate crimes so long as they are motivated by bias<\/a>.<\/p>\n\n\n\n 2.\nHate Crimes v. Incidents Involving Bias<\/strong><\/p>\n\n\n\n While both hate crimes and incidents involving bias refer to\nactions that are motivated by discrimination and prejudice, they are\ndistinguished legally. Incidents of bias, offensive speech, or biased speech do\nnot, in themselves, constitute a hate crime. There must be both<\/a> bias as well as a statutorily\ndefined criminal offense in order to elevate an incident\ninvolving bias to the level of a hate crime. Not all incidents involving bias\nare hate crimes. However, the distinction between a hate crime and an incident\ninvolving bias is not always clear. <\/p>\n\n\n\n The specific acts that, when coupled with a motivation of\nbias, amount to a hate crime under Clery can blur the line between bias\nincidents and hate crimes. Some crimes included under the hate crime umbrella\nof Clery are not <\/em>crimes under any\nother aspect of Clery. When motivated by bias, actions such as larceny, simple\nassault, intimidation, and destruction\/damage\/vandalism of property are hate crimes under Clery.<\/a>\nHowever, absent a manifestation of bias associated with these actions, they are not Clery crime<\/a><\/em>s at all.\n<\/em><\/p>\n\n\n\n 3.\nFirst Amendment Impact<\/strong><\/p>\n\n\n\n The additional crimes added\nto Clery create a gray area that may raise issues, specifically under the First\nAmendment. Since the additional crimes mentioned above only <\/em>constitute a Clery crime when they are motivated by bias, the\nfactors examined when considering if bias was the motivating factor in\nperpetrating the crime can be determinative. This results in a potential threat\nto students\u2019 First Amendment rights, as many\nof these factors may be speech acts that are protected by the First Amendment. <\/p>\n\n\n\n The First Amendment protects even \u201cheinous\u201d<\/a> speech.\nThis includes the ability to express your opinions, even if offensive, because\nit is a central tenant of the freedom of expression. In other words, speech\nthat is biased or hateful is protected\nunder the First Amendment<\/a>. Contradicting with this is that factors<\/a>\nsupporting a finding\nof bias under Clery include bias-related comments, markings, or words. <\/p>\n\n\n\n Moreover, this can cause a complete\nviolation of the freedom of expression. Some argue that focusing on the\nmotivations of the offenders is a violation of the\nFirst Amendment<\/a> because\nit is punishment based on the biased thoughts\n<\/em>of the offender.<\/p>\n\n\n\n 4.\nImplications <\/strong><\/p>\n\n\n\n Several questions arise about the intersection of Clery and\nthe First Amendment: How do we square the importance of safety and the goals of\nClery with the importance of protecting free speech on campuses? When considering\nan act\u2019s classification as a hate crime under Clery, how do we square the\nactor\u2019s freedom of speech, even if offensive, with the harm associated with\nbias incidents?<\/p>\n\n\n\n The lack of a statutorily defined criminal offense\nassociated with a bias incident certainly does not mean the incident is not harmful\nto students on campus. Students also have a legitimate interest in being\ninformed of bias incidents on their campus just like other crimes. <\/p>\n\n\n\n When hate\nspeech occurs on college campuses, it is demeaning to a group of people and contradictory\nto the values<\/a> of\ndiversity and inclusion, though it may be protected by the\nFirst Amendment. Even\nthough hate speech is protected under the First Amendment, it still\ninterferes with students\u2019 safety and college experience.\n\nClery demonstrates the\nimportance that reporting and being transparent about crimes can have on\nreducing those crimes. Because of this, I can imagine that campuses may begin\nto include bias incidents that are not Clery hate crimes in their safety\nreports. While this may help decrease bias incidents and increase total\ntransparency on campuses, campuses must be sure their categorization of bias\nincidents do not interfere students\u2019 freedom of speech.\n\n\n\n<\/p>\n","protected":false},"excerpt":{"rendered":" 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 …<\/a><\/p>\n","protected":false},"author":10,"featured_media":2692,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":[],"categories":[7],"tags":[34,35,63,174,175],"_links":{"self":[{"href":"https:\/\/journals.law.unc.edu\/firstamendmentlawreview\/wp-json\/wp\/v2\/posts\/2689"}],"collection":[{"href":"https:\/\/journals.law.unc.edu\/firstamendmentlawreview\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/journals.law.unc.edu\/firstamendmentlawreview\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/journals.law.unc.edu\/firstamendmentlawreview\/wp-json\/wp\/v2\/users\/10"}],"replies":[{"embeddable":true,"href":"https:\/\/journals.law.unc.edu\/firstamendmentlawreview\/wp-json\/wp\/v2\/comments?post=2689"}],"version-history":[{"count":0,"href":"https:\/\/journals.law.unc.edu\/firstamendmentlawreview\/wp-json\/wp\/v2\/posts\/2689\/revisions"}],"wp:featuredmedia":[{"embeddable":true,"href":"https:\/\/journals.law.unc.edu\/firstamendmentlawreview\/wp-json\/wp\/v2\/media\/2692"}],"wp:attachment":[{"href":"https:\/\/journals.law.unc.edu\/firstamendmentlawreview\/wp-json\/wp\/v2\/media?parent=2689"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/journals.law.unc.edu\/firstamendmentlawreview\/wp-json\/wp\/v2\/categories?post=2689"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/journals.law.unc.edu\/firstamendmentlawreview\/wp-json\/wp\/v2\/tags?post=2689"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}