Looking Forward:
Federal Laws
and Pending
Legislation
Impacting
Campus
Activities
Dr. John Wesley Lowery
Assistant Professor
Higher Education and Student Affairs
University of South Carolina
2004 NACA National Convention
Looking Forward
Dr. John Wesley Lowery
NACA 2004
Looking Forward:
Federal Laws and Pending
Legislation Impacting Campus
Activities
Dr. John Wesley Lowery
Assistant Professor,
Higher Education & Student Affairs
University of South Carolina
Historical Primer on Higher
Education Legislation impacting
Student Affairs
Redistributive and
Protective Policy Laws
• Redistributive policy attempts to
provide equity for morally desirable
ends by leveling the playing field.
• Protective policies assumes that
government knows what is best for
you and attempts to provide you
protection against perceived dangers.
Overview of the Program
• Historical Primer on Higher Education
Legislation impacting Student Activities
• FERPA
• Campus Security Act
• Pending Legislation and Reauthorization of the
Higher Education Act
• Legislative Proactivism
Constitutional Authority
Article 1, Section 8 of the Constitution provides
Congress with two means with which it
commonly passes legislation that impacts
higher education.
• The Spending Power to “provide for the
common defense and general welfare of the
United States.”
• Interstate Commerce Power “to regulate
commerce with foreign nations, and among the
several states, and with the Indian tribes.”
Redistributive and
Protective Policy Laws
Redistributive
• 1964 Title VI
• 1972 Title IX
• 1973 Section 504
Protective Policy
1974 FERPA
1989 Drug Free Amendments
1990 Campus Security Act
1992 Sexual Assault Victims
Bill of Rights
• 1998 Higher Education
Amendments
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•
•
•
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Looking Forward
Dr. John Wesley Lowery
NACA 2004
Title VI of the
Civil Rights Act of 1964
Higher Education Act of 1965
No person in the United States shall, on the
ground of race, color, or national origin, be
excluded from participation in, or be denied
the benefits of, or be subjected to
discrimination under any program or activity
receiving Federal financial assistance.
42 U.S.C. §2000d, July 2, 1964
• Introduced by Congresswoman Edith Green (D
- Ore)
• First comprehensive higher education legislation.
• Included, among other titles, Title IV, Student
assistance.
• Most of the laws and regulations we live with today
are related to the receipt of federal financial
assistance.
• Fewer than 5 higher education institutions in the U.S.
do not receive federal financial aid
• 20 U.S.C. 1001 et seq.
Title IX of the Education
Amendments of 1972
Rehabilitation Act of 1973
Section 504
No person in the United States shall, on the
basis of sex, be excluded from participation in,
be denied the benefits of, or be subjected to
discrimination under any education program or
activity receiving Federal financial assistance.
20 U.S.C. § 1681, June 23, 1972
Americans with Disabilities Act
Qualified Individual with a
Disability (QID)
• Individuals with a disability
who, with or without
“reasonable accommodations,”
can meet the academic
requirements in spite of their
disability.
No otherwise qualified handicapped
individual in the United States, as defined
in section 7(6), shall solely by reason of his
handicap, be excluded from participation in,
be denied the benefits of, or be subjected to
discrimination under any program or
activity receiving Federal financial
assistance. June 3, 1977.
Drug Free Schools and
Communities Act of 1989
Annual Distribution to each student and employee of:
• Standards of Conduct;
• Clear statement that the IHE will impose disciplinary
sanctions;
• A description of state, local and federal laws;
• A description of health risks;
• A description of counseling and rehabilitation programs.
20 USC § 1101i with regulations at 34 C.F.R. 86
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Looking Forward
Dr. John Wesley Lowery
NACA 2004
Family
Educational
Rights
& Privacy
Act of 1974
Students’ Rights Under FERPA
• Right to inspect and review educational
records.
• Right to seek to amend records.
• Right to have some control over the
disclosure of information from educational
records.
Some Exceptions To Prior
Consent
99.31(a)(1)--School officials including attorneys with legitimate
educational interests.
99.31(a)(2)—Seeks or intends to enroll.
99.31(a)(4)—In connection with financial aid
99.31(a) (6)—To organizations conducting studies on behalf of the
institution
99.31(a) (6)—For accreditation purposes
99.31(a)(8)—Parents of dependent students
99.31(a)(9)—Subpoenas/Court orders.
99.31(a)(10)— Health or safety emergency
99.31(a)(11)—Directory Information
99.31(a)(13)—Victim Notification
99.31(a)(14)—Release to the Public
99.31(a)(15)—Parental Notification
The Family Educational Rights
and Privacy Act
• Originally passed in 1974
• Amended numerous times over the past 3
decades
• Significant changes were included in the
Higher Education Amendments of 1998.
• Codified at 20 USC 1232(g)
• Regulations appear at 34 CFR 99
• The most recent Final Rule was published in
the Federal Register on July 6, 2000 (pp.
41852-41863).
FERPA
Under FERPA, education record means those
records that are:
1.Directly related to the student; and
2.Maintained by educational institution or by a
party acting for the institution.
(§99.3)
Legitimate Educational Interest
(1) The disclosure is to other school officials,
including teachers, within the agency or
institution whom the agency or institution has
determined to have legitimate educational
interests.
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Looking Forward
Dr. John Wesley Lowery
NACA 2004
Directory Information
May be disclosed without prior consent and
includes:
•
•
•
•
•
•
•
•
•
Name, address, telephone number
Date and place of birth
Field of study
Most recent previous school attended
Dates of attendance
Degrees and awards
Participation in recognized activities and athletics
Height and weight of athletes
Class schedule and rosters
Alcohol or Drug Possession
Disclosure (§99.31)
(15)(i) The disclosure is to a parent of a student at an
institution of postsecondary education regarding the
student's violation of any Federal, State, or local law, or of
any rule or policy of the institution, governing the use or
possession of alcohol or a controlled substance if- (A) The institution determines that the student has
committed a disciplinary violation with respect to that use
or possession; and
(B) The student is under the age of 21 at the time of the
disclosure to the parent.
(ii) Paragraph (a)(15) of this section does not supersede any
provision of State law that prohibits an institution of
postsecondary education from disclosing information.
What Staff Need to Know About
FERPA
• Definition of an education record.
• The extent of students’ rights to inspect and
review records.
• The obligation not to release records except as
provided for in the regulations.
• Not to post grades by social security number or
student identification number.
Victim Notification
FERPA was also amended in 1990 by the Student
Right-to-Know and Campus Security Act to allow
colleges & universities to inform the alleged
victim of a “crime of violence” of the outcome of
the student disciplinary proceeding against the
alleged perpetrator. (§99.31)
The amendments to the Student Right-to-Know
and Campus Security Act in 1992 require
colleges and universities to inform the victim of an
alleged sexual assault of the final outcome of the
disciplinary proceeding against the alleged
perpetrator.
FERPA
Questions concerning FERPA may be directed to:
Family Policy Compliance Office
U.S. Department of Education
600 Independence Avenue. S.W.
Washington, D.C. 20202
- 4605
(202) 260- 3887
http://www.ed.gov/offices/OM/fpco/
ferpa@ed.gov
The Jeanne Clery Disclosure of
Campus Security Policy and
Campus Crime Statistics Act
• Raped and Murdered by a fellow
student in her residence hall room
on April 5, 1986 at Lehigh
University.
• Josoph M. Henry was able to
enter Jeanne’s residence hall
room through a series of
residence hall doors propped open
with pizza boxes.
• Josoph M. Henry was originally
convicted and sentenced to death.
Last year, the death penalty was
overturned, but that decision is
under appeal.
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Looking Forward
Dr. John Wesley Lowery
NACA 2004
Campus Security Act
Campus Security Act
• Originally passed in 1990 as part of the Student
Right-to-Know and Campus Security Act.
• Amended in 1992 and 1998 by the Higher
Education Amendments.
• Codified at 20 USC 1092f
• Regulations appear at 34 CFR 668.46
• The two most recent Final Rules were published
in the November 1, 1999 Federal Register (pp.
59060-59073) and October 31, 2002 Federal
Register (pp. 66519-66521).
The Jeanne Clery Disclosure of Campus
Security Policy and Campus Crime Statistics
Act requires that all institutions of higher
education which receive federal financial
assistance produce an annual security report
which is distributed to all current students and
employees and a summary of which is
available to all prospective students and
employees.
Campus Sex Crimes Prevention
Act (passed October 2000)
The Campus Sex Crime Prevention Act
requires (starting in 2003) that states provide
institutions with the names of all students and
employees who are registered sex offenders
and that institutions make this information
available and include in the annual security
report where this information can be obtained.
Crime Statistics
Crime Statistics
The Annual Security Report must include the
statistics three most recent calendar years
concerning the occurrence on campus, in or on
noncampus buildings or property, and on
public property of the following crimes that
are reported to local police agencies or to a
campus security authority:
Crime Statistics
1. Criminal homicide:
(A) Murder and nonnegligent manslaughter.
(B) Negligent manslaughter (beginning with 1999)
2. Sex offenses:
(A) Forcible sex offenses
(B) Nonforcible sex offenses
3. Robbery
4. Aggravated assault
5. Burglary
6. Motor vehicle theft
7. Arson (beginning with 1999)
Arrests for liquor law violations, drug law
violations, and illegal weapons possession.
Statistics for persons (includes both students and
employees) who were not arrested but were
referred for campus disciplinary action for
liquor law violations, drug law violations, and
illegal weapons possession (beginning with
1999).
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Looking Forward
Dr. John Wesley Lowery
NACA 2004
Hate Crimes
An institution must report, by category of prejudice, any
crime it reports pursuant to paragraphs (c)(1)(i) through
(vii) of this section [this refers to criminal homicide, sex
offenses, robbery, aggravated assault, burglary, motor
vehicle theft, and arson], and any other crime involving
bodily injury reported to local police agencies or to a
campus security authority, that manifest evidence that
the victim was intentionally selected because of the
victim's actual or perceived race, gender, religion,
sexual orientation, ethnicity, or disability.
Noncampus Building or Property
(1) Any building or property owned or controlled
by a student organization that is officially
recognized by the institution; or
(2) Any building or property owned or controlled
by an institution that is used in direct support of,
or in relation to, the institution's educational
purposes, is frequently used by students, and is
not within the same reasonably contiguous
geographic area of the institution.
Campus Security Authority
(1) A campus police department or a campus
security department of an institution.
(2) Any individual or individuals who have
responsibility for campus security but who do
not constitute a campus police department or a
campus security department under paragraph
(1) of this definition, such as an individual
who is responsible for monitoring entrance
into institutional property.
Defining Campus
(1) Any building or property owned or controlled by
an institution within the same reasonably
contiguous geographic area and used by the
institution in direct support of, or in a manner
related to, the institution's educational purposes,
including residence halls; and
(2) Any building or property that is within or
reasonably contiguous to the area identified in
paragraph (1) of this definition, that is owned by
the institution but controlled by another person, is
frequently used by students, and supports
institutional purposes (such as a food or other
retail vendor).
Public Property
All public property, including thoroughfares,
streets, sidewalks, and parking facilities, that is
within the campus, or immediately adjacent to
and accessible from the campus.
Campus Security Authority
(3) Any individual or organization specified in
an institution's statement of campus security
policy as an individual or organization to
which students and employees should report
criminal offenses.
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Looking Forward
Dr. John Wesley Lowery
NACA 2004
Campus Security Authority
(4) An official of an institution who has
significant responsibility for student and
campus activities, including, but not limited to,
student housing, student discipline, and campus
judicial proceedings. If such an official is a
pastoral or professional counselor , the official
is not considered a campus security authority
when acting as a pastoral or professional
counselor.
Clery Handbook
The appropriations act passed by Congress for
Departments of Labor, Health and Human
Services, and Education, and Related
Agencies included $750,000 to provide to all
Title IV institutions, that are eligible for funding
under the higher education, a “Jeanne Clery Act”
compliance handbook providing detailed
instructions on compliance. (H.J.RES.2)
Hazing Prohibition Act of 2003
(H.R. 1207)
108th Congress:
Looking Forward
FED UP
Fed Up Higher Education Technical
Amendments Act of 2003 (H.R. 12)
“Improves flow of information to students.
Expands the use of technology to provide
information, such as voter registration
material, directly to students in a timely
manner.”
Hazing Prohibition Act of 2003
• The legislation would prohibit students
sanctioned for hazing from receiving any
form of federal financial aid.
• The legislation would also add hazing to the
list of crimes for which statistics must be
included in the annual security report.
Rep. Diane Watson (D-CA)
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Looking Forward
Dr. John Wesley Lowery
NACA 2004
Bryan's Law (H.R. 1843)
Representative Robert E. Andrews (D
- NJ)
Member, Subcommittee on 21st Century Competitiveness
Representative Andrews (D
- NJ) has reintroduced
Bryan’s Law. This bill would require institutions to
adopt policies related to missing students with the
following provisions:
• Upon receiving a report that a resident student under
21 is missing, the institution would have to complete
a preliminary investigation.
• If the institution cannot verify the student is safe
within 24 hours, the institution must notify the
parents and the local police that the student is
missing.
Student Privacy Protection Act of
2003 (H.R. 1848)
• This legislation would create a clearly
expressed private right of action for parents
and students (or persons applying for
admission) for violations of FERPA.
• This legislation would apply to both public and
private institutions.
The Campus Fire Safety Right to
Know Act
(H.R. 2683 & S. 1385)
Rep. Bill Pascrell, Jr.
(D-NJ 8th)
Fire Safety Legislation
The Campus Fire Safety Right to
Know Act
Would require the publication of Annual Fire
Safety Report containing:
• Information on sprinklers in residence halls,
• Statistics (for the previous 2 years) for fires and
false alarms in residence halls,
• Information on injuries, deaths, and damage
caused by these fires.
• Information on fire and smoke alarms as well as
fire escape protocols for residence halls.
Senator Jon Corzine
(D-NJ)
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Looking Forward
Dr. John Wesley Lowery
NACA 2004
The Campus Fire Safety Right to
Know Act
• Policies related to fire safety in residence halls
such as policies on candles and hot plates.
• Information about fire safety education and
training provided to students, faculty, and staff,
including the percentage of who have
participated.
• Institutions would also be required to provide the
information listed above for all fraternities and
sororities.
College Fire Prevention Act (H.R.
1613 & S. 620)
• Directs the Secretary of Education to make
competitive demonstration grants to private or
public colleges or universities, fraternities, or
sororities for up to half the cost of installing fire
sprinkler systems, or other fire suppression or
prevention technologies, in student housing and
dormitories.
• Introduced by Representative Stephanie Tubbs
Jones (D-OH 11th) in the House and Senator John
Edwards (D-NC) in the Senate.
Responsible Student Financial
Assistance Assurance Act of 2003
(H.R. 696)
Legislation related to Alcohol
and Drugs on Campus
H.R 685
Would amend the Higher Education Act of 1965
to restrict the disqualification of students for drug
offenses to those students who committed
offenses while receiving student financial aid.
Campus CORT Act (S. 399)
H.R. 685—Would
completely repeal the
provisions prohibiting
persons convicted of
drug offenses from
receiving student
financial assistance.
Rep. Barney Frank
(D-MA 4th)
This legislation would
create a grant program to
create up to 5 campus
classmate offenders in
rehabilitation and treatment
programs (referred to as
Campus CORTS) modeled
after state drug courts and
the DAY IV Campus Drug
Court at Colorado State
University.
Senator Ben Nighthorse
Campbell (R-CO)
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Looking Forward
Dr. John Wesley Lowery
NACA 2004
Student Athlete Protection Act
(H.R. 1451)
Representative Tom Osborne
(R-NE 3rd)
Student Athlete Protection Act (H.R.
1451)
This bill was introduced by Rep. Tom Osborne
(R-NE and former University of Nebraska
Football Coach) and currently has 35 cosponsors. The bill has been referred to the
House Committee on the Judiciary. The
legislation would quite simply outlaw high
school and college sports gambling.
Academic Bill of Rights
Academic Bill of Rights
(House Concurrent Resolution 318)
Congress encourages all public and private colleges and
universities in the United States to adopt an Academic Bill
of Rights including:
• Selection of speakers, allocation of funds for speakers'
programs, and other student activities will observe the
principles of academic freedom and promote intellectual
pluralism.
• Because an environment conducive to the civil exchange of
ideas is an essential component of a free university, the
obstruction of invited campus speakers, the destruction of
campus literature, and other efforts to obstruct this exchange
will not be tolerated.
Senate Hearings on Intellectual
Diversity
• In the fall of 2003, the Senate Committee Health,
Education, Labor and Pensions held two hearings
on intellectual diversity on college campuses.
• Speakers addressed issues facing both students
and faculty.
• Greg Lukianoff, J.D. of FIRE spoke on the
prevalence of “speech codes” on campus. The
text of his comments are available on-line at
Reauthorization of the Higher
Education Act
http://health.senate.gov/testimony/100_tes.html
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Looking Forward
Dr. John Wesley Lowery
NACA 2004
U.S. House of Representatives
• Responsibility for the Reauthorization of the
Higher Education Act in the House falls to
Committee on Education and the Workforce.
• Most of the legislation will originate in the
Subcommittee on 21st Century
Competitiveness.
The College Cost “Crisis”
• The Senate has made little progress to date on
Reauthorization of the Higher Education Act.
• Senator Gregg (R-NH) chairs the Committee
and has identified Education Week (March
22nd) for the Senate to complete work on
Reauthorization.
College Affordability in Higher
Education Act (H.R. 3311)
Representative Howard
“Buck” McKeon (R-CA
25th)
Chair, Subcommittee on 21st
Century Competitiveness,
House Committee on
Education and the Workforce
Scary scary By: Larry Wright The Detroit NewsOctober 27, 2003
College Affordability in Higher
Education Act
Rep. Buck McKeon (R
- CA) has introduce legislation to:
1. Create a college affordability index to measure a
college's rate of tuition increase. (Any institution
increasing tuition by more than twice the rate of inflation
would have defend this to the Department of Education
and face sanctions for repeated increases.)
2. Encourage innovations in college affordability.
3. Increase college affordability through a more equitable
and affordable system transferring credits.
4. Reduce regulatory burdens on institutions.
http://www.congress.org/congressorg/webreturn/?url=http://edworkforce.house.gov
The College Quality, Affordability, and
Diversity Improvement Act of 2003 (S.
1793)
Senator Edward
Kennedy (D-MA)
Ranking Democrat on the
Senate Health,
Education, Labor and
Pensions Committee
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Looking Forward
Dr. John Wesley Lowery
NACA 2004
The College Quality, Affordability, and
Diversity Improvement Act
Illegal File Sharing
Cartoons by Daryl Cagle
• Expands various student loan programs
• Addresses the issue of college costs through:
– Stability in State Support for Higher Education:
requires states to maintain 90% of previous year state
fiscal effort for higher education in order to receive new
federal financial aid.
– College Cost Summit
– Truth-in-Tuition and College Cost Inflation
– Reduces Colleges Regulatory Compliance Costs
Illegal File Sharing
In February, the House of Representatives’ Judiciary
Committee held hearings on the issue of illegal file
sharing by college students with testimony by
representatives of the Recording Industry Association
of American and officials from Pennsylvania State
University, University of North Carolina, and
University of Tulsa.
His Masters Voice
Slate.com September 26, 2003
Music Swapping
Slate.com September 11, 2003
Illegal File Sharing
Rep. Lamar S. Smith, chair of the
House Judiciary Committee's
subcommittee on courts, the
Internet, and intellectual property,
attacked colleges and universities
for failing to prevent illegal file
sharing by students stating,
“University students illegally
download music, sometimes on
publicly supported computers.
When encouraged to exercise
disciplinary measures, too many
university administrators react
with relative indifference. ‘Kids
will be kids,’ they say.”
Representative Lamar
Smith (R-TX 21st)
Privacy & Piracy
Senator Norm Coleman (R-MN)
Chair, Permanent
Subcommittee on
Investigations, Committee on
Governmental Affairs
Legislative Proactivism and
Student Activities
“I don’t believe lawsuits are
the answer to the RIAA’s
problems,” Senator Coleman
said. “While the industry has
every right to protect its
intellectual property, lawsuits
should not be the primary
means by which they do so.”
(1/21/04)
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Looking Forward
Dr. John Wesley Lowery
NACA 2004
Legislative Proactivism
NASPA, ASJA, ACPA, ACUI and ACHA have formed
the Consortium on Governmental Relations for
Student Affairs (CGRSA) which has retained Carol
Holladay of Hurt Norton:
– Assist in the interpretation and review of legislation;
– Assist in identifying applicable potential legislation;
– Provide guidance on a legislative agenda and strategy
– Represent us in meetings with key members of
Congress;
– Attend conferences to provide legislative and
regulatory updates;
– Advise on “grassroots” efforts;
Legislative Proactivism
Role for Individual Institutions and
Professionals:
• Communicate with elected representatives
regularly (coordinate your efforts with
governmental relations staff).
• Try to remain current on actions in
Washington influencing student affairs.
• Always share your feedback and expertise.
Don’t assume that the efforts of professional
associations are enough.
Internet Resources
Campus Legal Information Clearinghouse
http://counsel.cua.edu
Congress.org by Capital Advantage
http://www.congress.org
Department of Education
http://www.ed.gov
Family Policy Compliance Office
http://www.ed.gov/policy/gen/guid/fpco/index.html
Supreme Court of the United States
http://www.supremecourtus.gov
Thomas: Library of Congress
http://thomas.loc.gov
Legislative Proactivism
• The student affairs community, lead by its
professional associations, has taken a more
proactive approach to legislative issues in
recent years.
• We must seek to establish an ongoing dialogue
with Congress, which is not limited to the
context of specific legislation.
Recommendations for Writing
• Fax your letter—you can find fax numbers for all
members of Congress easily through
www.congress.org
• Identify the staff member responsible for education
issues and send your letter to their attention—also
on www.congress.org
• Acknowledge the importance of the issue
addressed in the legislation.
• Provide specific examples from your own
experience to explain your support of or opposition
to the legislation in question.
For more information contact:
Dr. John Wesley Lowery
Assistant Professor
Higher Education and Student Affairs Program
Department of Educational Leadership & Policies
University of South Carolina
Wardlaw College, Room 318
Columbia, SC 29208
803- 777- 4158 office
803- 777- 3090 fax
jlowery@gwm.sc.edu
http://www.ed.sc.edu/edlp/hesa.asp
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