- Hate Crime Statutes
- Arguments for and Against Hate Crime Laws
- Hate Speech
- Campus Behavior and Speech Codes
The presence of bias-motivated crime, or hate crime, on college and university campuses is a reality in today’s cultural landscape. Hate crime is a criminal offense that is motivated, in whole or in part, by the offender’s bias against a particular race, color, religion, disability, ethnicity/national origin, or sexual orientation. Officials at institutions of higher learning may be asked to deal with these types of offenses on many different levels, ranging from cultural education to the campus judicial system to the criminal justice system. This entry outlines the attributes of current hate crime legislation on both the federal and state levels and describes currently pending federal hate crime legislation. The goals of hate crime legislation are then reviewed, along with arguments for the view that hate crime statutes are not in the public’s best interest. The entry then briefly discusses the differences between hate crime and hate speech and the legal relationship they play to harassment. Finally, the entry examines the potential of campus speech codes and codes of conduct in regulating hate crime.
Hate Crime Statutes
Hate crime statutes vary from jurisdiction to jurisdiction. The regulations enacted pursuant to the major federal hate crime statute, the Violent Crime Control and Law Enforcement Act of 1994, allow for more severe sentences in cases where “the defendant intentionally selected any victim or any property as the object of the offense because of the actual or perceived race, color, religion, national origin, ethnicity, gender, disability, or sexual orientation of any person” (60 Federal Register 25,082, Application Notes 4). Other major federal statutes include the Hate Crime Statistics Act of 1990 and the Campus Hate Crimes Right to Know Act of 1997 (also known as the Clery Act). The Hate Crime Statistics Act recognizes the classes of race, religion, disability, sexual orientation, and ethnicity, but it excludes color, national origin, and gender, three classes that were later included in the Violent Crime Control and Law Enforcement Act of 1994. Based on these classifications, the latter act directs the attorney general to collect data on hate crimes occurring in the United States. These data are then made available through a joint report by the FBI and Department of Justice.
The Campus Hate Crimes Right to Know Act of 1997 amended the Higher Education Act of 1965 to include a requirement to report all crimes “based on race, gender, religion, sexual orientation, ethnicity, and disability.” This act does not include the classes of color and national origin. The Campus Hate Crimes Right to Know Act is formally codified in 20 U.S.C. § 1092(f) with other reporting provisions of the Clery Act. The annual reporting of hate crime statistics by university officials is just one of the crime statistics that must be reported by college officials. In addition to annual crime reports, institutional officials must issue timely warnings about crimes, have a public crime log, and ensure that established rights of the victims of campus sexual assault are respected.
The three pieces of federal hate crime legislation do not use the same categories or classes of membership to define victims of hate crime, and state statutory views are equally uneven. All but five states currently have some form of hate crime statutes, but the included classes differ. Some classes that are included in state statutes but not included in federal statutes are political affiliation (5 states), age (13 states), and transgender/gender identity (12 states). Additionally, states vary on reporting requirements, ability to bring civil suits, required training for law enforcement, and vandalism statutes.
The effect of this rugged legal landscape for the education community is that for most parties, the application of state law to the facts at hand is the most important element. However, state law also has the most variability; thus, institutions operating in multiple states will have to deal with potentially disparate laws, especially if one of the states in which they operate has no hate crime statutes at all. The Anti-Defamation League keeps a comprehensive list of state-by-state hate crime statutes and can provide a valuable starting place for becoming familiar with state hate crime statutes.
In light of the incongruence in state hate crime legislation, there is currently proposed federal legislation, the Local Law Enforcement Hate Crimes Prevention Act of 2007, also known as the Matthew Shepard Act, which would broaden the federally protected classes of membership to include gender identity. The current version of H.R. 1592 would also expand the classifications to include actual or perceived membership, thus resulting in the inclusion of people who do not actually meet the requirements for membership but whose alleged violators mistakenly believed that they did. This legislation was under consideration as of mid-2009 but had yet to pass both houses of Congress. In addition to broadening the included protected classes, the act is designed to harmonize the existing federal statute classes.
Arguments for and Against Hate Crime Laws
Hate crime laws are intended to provide harsher punishment for crimes that are committed with an element of bias than for comparable crimes committed without such bias. In Wisconsin v. Mitchell (1993), the U.S. Supreme Court acknowledged that state officials may want to enact such laws, because hate crimes inflict greater individual and societal harm than other crimes. For example, such crimes may increase the likelihood of retaliatory crimes, cause a distinct kind of emotional harm to the victim, and contribute to community unrest. The Court held that these state interests amounted to more than just disagreement with the offender’s beliefs or biases and that hate crime laws did not violate defendants’ rights to free speech by purportedly punishing their biased beliefs.
In addition to these reasons for hate crime legislation, others have argued that only through codified hate crime laws can the government send a clear message that bigotry is not accepted or valued. Proponents of this position assert that because it is impossible for the government to take a neutral stance toward hate crimes, a governmental entity that fails to enact hate crimes is expressing a value judgment of acceptance through doing nothing.
Opposition to hate crime laws are grounded in two different concepts—government discrimination and First Amendment violations. The first concept asserts that increased sanctions due to the victim’s membership in a governmentally selected class results in preferred treatment of these classes by the government, to the detriment of other classes of people. The argument is that by using hate crime laws to combat bigotry and intolerance, the government is discriminating against other classes of citizens. The second argument that opponents raise is grounded in the First Amendment and maintains that hate crime laws increase punishments simply for “thought crimes” or for being a bigot.
Opponents of this position criticize the outcome of Wisconsin v. Mitchell (1993), wherein the Supreme Court upheld an enhanced punishment where the victim was intentionally selected because he was White. The Court rejected the notion that the statute violated the defendant’s First Amendment right to free speech by purportedly punishing him for biased beliefs, because violence or other potentially expressive activities that result in special harm are distinct from their communicative impact and thus are not entitled to constitutional protection. Even so, these critics have questioned this legal reasoning as nothing more than an attempt to avoid the protections of the Free Speech Clause of the First Amendment.
Regardless of purpose, the application of hate crime legislation is frequently confused and intermingled with hate speech. Hate crime legislation provides for increased sanctions and reporting mechanisms for bias-motivated crimes. The underlying requirement, then, is that a crime be committed. Hate speech, on the other hand, is speech that is directed toward one of the protected classes such as individuals of a certain race, gender, or sexual orientation, and it may or may not be protected.
Due to this distinction, hate speech can end up being protected by constitutional and state law guarantees of free speech. What qualifies as protected speech is very fact specific and can vary based on many factors. What may be protected speech under one set of facts may qualify as harassment in a different situation. Speech may generally qualify as harassment if a reasonable person finds it is “severe or pervasive,” if it creates a hostile work environment, or if it is based on a trait of a protected class of people. This definition leaves a great deal of discretion as to what speech qualifies as harassment. The resulting legal outcome is one that requires careful attention to whether a crime is being committed other than violating a hate crime statute, if the behavior is harassment rather than a hate crime, or if the speech (or expressive behavior) qualifies as protected speech.
Campus Behavior and Speech Codes
Many campuses may want to create campus behavior or speech codes aimed at a variety of different nontolerated behaviors, including biasmotivated crimes. Such a restriction is more easily enacted at a private higher education institution. However, officials at public institutions of higher learning, as actors on behalf of state entities, need to ensure that their behavior and speech codes are content-neutral and designed to meet a narrow government interest. These types of campus rules, while not singling out specific classes of protected people, express a clear value stance that bigotry will not be tolerated by any member of the campus community. Such codes can provide campus officials with greater flexibility in enforcement and the needed judicial reach to preserve harmonious campus cultures.
See also Crime Awareness and Campus Security Act; Disciplinary Sanctions and Due Process Rights; Free Speech and Expression Rights of Students
Gellman, S. (1991). Sticks and stones can put you in jail, but words increase your sentence? Constitutional and policy dilemmas of ethnic intimidation laws. UCLA Law Review, 39, 333–397.
R. A. V. v. City of St. Paul, 505 U.S. 377 (1992).
Robinson, P. H. (2005). Hate crimes. In P. H. Robinson (Ed.), Criminal law: Case studies and controversies (pp. 833–860). New York: Aspen.
Campus Hate Crimes Right to Know Act, 20 U.S.C. § 1092 (1997).
Hate Crime Statistics Act of 1990, 28 U.S.C. § 994 (2006).
Higher Education Act, 20 U.S.C. §§ 1001 et seq. (1965).
Local Law Enforcement Hate Crimes Prevention Act of 2007, H.R. 1592, 110th Cong. § 8 (2007).
Violent Crime Control and Law Enforcement Act of 1994, Pub. L. No. 103-322, 108 Stat. 1796, 2042 (1994).
Wisconsin v. Mitchell, 508 U.S. 476 (1993).