By Andrea Stagg and Joseph Storch

On July 11, 2023, New York Governor Kathy Hochul announced more than $51 million in grants “to strengthen safety and security measures at nonprofit, community-based organizations at risk of hate crimes or attacks.” Nestled into this announcement was that the governor also signed a bill that amends Education Law Article 129-a. The amendments are aimed at strengthening hate crime reporting and investigation requirements for college campuses.

Background

Education Law 129-a requires all colleges and universities in the Empire State to maintain certain policies and practices relating to campus safety and security. Schools must train on specific topics and appoint an advisory committee on campus security.

The amendments add a state requirement for bias related incidents and hate crime counting and disclosure for New York state’s public and private colleges and universities. The amendment also serves to provide some updates to the existing law; for example, requiring information to be on a website instead of in a campus catalog or “student handbook and viewbook” and changing “web site” to “website.”

Changes from the Current Law

Current state law (Section 6431) requires the advisory committee on campus security to review current policies and make improvements. The law designates specific policies and procedures that must be reviewed, including those for educating the campus community about sexual assault, domestic violence, and stalking. This amendment adds “bias related and hate crimes” to that list.

On crime reporting and disclosure (Section 6433), the amendment requires that institutions “report and post incidents of hate crime offenses as a separate, clearly designated category on their website.”

The current law (Section 6433) requires the president of each college, working with the advisory committee on campus safety, to inform current and prospective students about the existence of campus crime statistics; the amendment changes that requirement from simply being “on an annual basis” to specifically making it “as part of the college’s onboarding process.” This move toward an onboarding approach is a nod to the Education Law 129-b training requirement.

The current law (Section 6434) requires the adoption and implementation of a plan for investigating violent felony offenses “occurring at or on the grounds of each such institution,” including notifying law enforcement. The amendment requires these rules that apply to violent felony offenses to also apply to hate crimes.

The amendment also updates the current law’s definitions section (Section 6434[2]) to say that “‘Hate crime’ shall have the same meaning as section 485.05 of the penal law.”

Lastly, current Section 6436 was updated to clarify that it includes not only bias related crimes but also “hate crimes,” adding that term throughout.

Section 6436 also dictates the bias related and hate crime prevention information that must be provided to incoming students, which includes but is not limited to:

• The applicable law defining hate crimes (New York Penal Law 485);
• Penalties for committing bias related and hate crimes;
• Institutional procedures for addressing bias related and hate crimes;
• The availability of counseling and other support;
• The “nature and common circumstances” of such crimes; and
• The methods used to advise and update students on security procedures.

Analysis & Implementation

This section addresses potential compliance questions regarding posting, definitions, and geographic scope. The amendment is somewhat vague; higher education professionals should consider the plain language reading of the amendment as they plan implementation.

Separate hate crime posting

The first compliance requirement in the amendment (found in Section 6433) is also the most straightforward: colleges and universities must post on their website how to access the Clery Act Annual Security Report (ASR) and its statistics. It is nearly certain that all institutions already meet this requirement. The Clery Act requires that institutions disclose for the previous three calendar years, all Part I Primary Crimes and the four Part III Hate Crimes. For Clery Act purposes, colleges and universities are only required to disclose crimes that occur within the four Clery Act geographic categories and are reported to a campus security authority or to local law enforcement.

But that’s not all: the new law adds, in Section 6433, that institutions shall “report and post incidents of hate crime offenses as a separate, clearly designated category on their website.” This seems to require that a link to hate crime reporting information must be available distinct from the ASR posting. Listing Clery Act Hate Crime incidents separately to comply with Section 6433 could be as simple as a cut-and-paste from the ASR or crime log.

The law does not address (1) the time period covered by the hate crime disclosure list, or (2) how often that list must be updated. Clery Act statistics are published on or before October 1 of each year and reflect the prior three calendar years. Incidents must be added to a crime log within two days of a report. Yet, the New York statute does not include timing or timeframe information, so it is not clear whether the state is expecting this new section of the website to be updated each October 1 with the prior three calendar years, updated consistent with the crime log, or updated on some other timeline. Further, while for Clery Act purposes, the prior three calendar years timeline is the measure required to report hate and other crimes, it is not clear whether the state-required website must comply with the same retention period or be posted for longer. 

Defining “hate crime offense” for disclosure under Section 6433

Section 6433 does not include a definition of a “hate crime offense.” Readers can then assume that the definition is aligned with the Clery Act definition.

The only definition for “hate crime offense” in 129-a is found in Section 6434, which discusses investigations of crimes and crime reporting. The new language defines “Hate crime [as having] the same meaning as section 485.05 of the penal law” “[a]s used in this section.” Using the plain reading of the words, “this section” would refer to Section 6434 (about investigations), and not to Section 6433 (about disclosing statistics).

Reconciling the two categories of hate crimes

The investigation and law enforcement notification procedures under Section 6434 must include hate crimes as defined by the Penal Law, which covers a broader set of crimes than hate crimes under the Clery Act. Staff members should be aware that the hate crimes that will require investigation and coordination with law enforcement are not all Clery Act reportable hate crimes for the purpose of counting and disclosing those statistics (under federal law or 129-a).

Reconciling the varying geography considerations in Sections 6433 and 6434

A plain reading of Section 6433 indicates that the disclosure of statistics is aligned with Clery reporting, including in geography. The Clery Act requires that we report in the Annual Security Report hate crimes and other crimes that occur on campus, in the residence halls, on public property adjacent to and accessible from on-campus property, and on non-campus property.

Section 6434 is different. It requires colleges and universities to implement a plan for investigating hate crimes “occurring at or on the grounds of each such institution.” This geographic scope is narrower than the Clery Act geography. This means that depending on where a hate crime occurred, an institution may be required to disclose it as a Clery hate crime but may not necessarily be required to investigate it. For example, a hate crime that occurs in “non-campus property” would be disclosed in the Clery report but would not require investigation or law enforcement notification under Section 6434.

Determining whether to distinguish bias related crimes from hate crimes

The amended law requires that we disclose hate crimes in the Annual Security Report and in another section of the institution’s website, respond to “any hate crime…occurring at or on the grounds,” but “inform incoming students about bias related and hate crime prevention measures…in order to disseminate information about bias related and hate crimes, promote discussion, encourage reporting of incidents of bias related and hate crimes, and facilitate prevention of such incidents.” The law doesn’t distinguish between hate crimes and bias related crimes or refer to any external definition.

Implementation Reminders & Resources

These amendments take effect on November 14, 2023, a week before the effective date of the new New York City prohibition on discrimination based on a person’s height or weight in employment, housing, and public accommodations.

Note that these requirements are separate and apart from those of Education Law Article 129-b, which includes detailed requirements for education, response, data collection, and training for sexual assault, domestic violence, dating violence, and stalking. Placing the bias related and hate crimes language in Article 129-a does not incorporate the more detailed standards and requirements of Article 129-b.

The bill language is available here, and shows the tracked changes with additions and strikeouts to the current law’s language. The State Education Department enforces Education Law Article 129-a and may issue more guidance to help institutions answer some of the questions raised by the language of the statute.