What the New Campus-Safety Center Can Accomplish

Michael Morgenstern for The Chronicle

July 15, 2013

In March, Congress authorized temporary funds for the new National Center for Campus Public Safety within the Department of Justice. The center heralds the emergence of a new federal civil right—that of every college student to a reasonably safe learning environment—and a new vision of how the federal government may help to bring about fundamental changes in campus safety.

Now Congress should fully commit to this important issue by passing legislation to permanently support the center.

Until recently, campus safety was dealt with primarily at the state level, and as a result there is still no single comprehensive federal campus-safety law. Federal law on campus safety is scattered throughout several measures, and enforcement mandates have been delegated to multiple federal agencies.

Prior administrations only occasionally intervened in college-safety issues, usually by enforcing the Clery Act, which requires colleges to report crimes on their campuses. Most students and families routinely ignored those reports; colleges often viewed them as unnecessary red tape.

Under the Obama administration, however, the government is getting more serious about regulating college campuses—and college safety in particular—fueled largely by high-profile incidents such as the Virginia Tech shootings and the hazing death of a marching-band member at Florida A&M University. Colleges now face a growing list of federal safety mandates.

The Clery Act has grown from a crime-reporting mandate to a crime-fighting one; the Department of Education now audits colleges under a variety of federal laws and has augmented its power to fine institutions under the Clery Act.

Enforcement of Title IX of the Education Amendments of 1972, which bars gender discrimination at institutions that receive federal funds, has also radically changed: Colleges must now use a lower threshold of evidence to determine guilt in cases of sexual harassment and sexual assault.

The Department of Education has not been shy about issuing heavy fines, and recently the Department of Justice has intervened, notably in a Title IX investigation at the University of Montana. Colleges now face much stricter enforcement of federal law and the potential wrath of multiple agencies.

The hope is that the new public-safety center will foster greater efficacy in federal regulation and enforcement efforts, improve communication with colleges, and provide badly needed safety resources to campuses via grants and technical assistance. Congress has the historic opportunity to empower the center with a broader legislative mandate and permanent, substantial funds.

Here is a blueprint for how the center can create safer campuses:

First, it can help to create and articulate national standards of college safety. Students should be able to expect reasonable levels of safety wherever they study. It makes little sense to allow basic safety rules to vary widely from state to state, especially since it makes things confusing for students and their families.

Second, the center can advance college-safety standards that are grounded in science. Compliance with many states' safety mandates tends to focus on a nonspecific, subjective negligence standard, which often leaves colleges with more questions than answers.

Third, the center can help increase coherence and cohesiveness among federal agencies. Currently colleges are left wondering how to comply with potentially inconsistent guidance and mandates from different agencies. For example, in the Montana case, the Department of Justice recently directed the university to take Title IX compliance steps that were not present in the 2011 "Dear Colleague" letter on Title IX from the Department of Education. Or consider that the Department of Justice's position on what constitutes "direct threat" must be reconciled with the Department of Education's position on the enforcement of laws protecting individuals with disabilities, including those with mental disorders.

Those are hardly trivial matters in day-to-day decisions on campus safety. Colleges honoring the directives from the Department of Justice in the Montana matter may expose themselves to serious claims of violations of First Amendment rights if they discipline students for certain forms of "hostile" speech. And what are we to do with students with disabilities who risk doing serious harm to themselves but not others?

Congress can assert its leadership and mandate that agencies collaborate to create clear, consistent guidance via the public-safety center. The new center can also coordinate enforcement under various laws to achieve common goals among them. For instance, it makes little sense to pursue enforcement of regulations on high-risk alcohol use independently from Title IX programs, when we know that incidents of sexual violence correlate with alcohol use.

Finally, the center can foster a more productive relationship with higher education and move college-safety law from litigation and fines to facilitation and grants. Colleges that lose a state-law negligence lawsuit can be out hundreds of thousands of dollars; Yale was recently fined $165,000 for violations of the Clery Act. Such sums could fuel several years' worth of alcohol- and drug-prevention efforts that would save lives. Imagine a world where colleges could apply for assistance to improve their campuses based on a self-evaluation under scientifically tested safety standards created within a higher-education culture.

For instance, your college might need to improve its threat-assessment procedures. The center could provide technical assistance, a cutting-edge database of literature, and grants. Go a step further and imagine a world where good-faith efforts to comply with recognized safety standards provide colleges with some measure of protection in state-court litigation. The center can shift the emphasis from damages and fines to facilitation and protection. We need to spend more on safety and less on costly compliance efforts designed to protect us from fines and damages. We need more help, less blame.

Incidents of violence have robbed us of our innocence about campus safety and put us irrevocably in an age of greater federal intervention. The new center represents a time to choose. Will we as a society choose to recognize that all students have a right to be reasonably safe in college?

Let us hope that Congress moves forward by enacting a national campus-safety bill. Progress in American higher education depends on recognizing the importance of safety to higher learning. Achieving safer campuses requires a combination of science, law, and compassion.

Peter Lake is director of the Center for Excellence in Higher Education Law and Policy at Stetson University College of Law. He is the author of The Rights and Responsibilities of the Modern University (Carolina Academic Press, second edition, 2013).