Higher Ed Opportunity Act Includes Whistleblower Protection


College and university public safety officials should no longer fear they will suffer reprisals when they report that their campuses are not properly reporting crime. That’s because the Higher Education Act (HEA), signed into law by President Bush in August, now contains a whistleblower provision. Section 488(e)(3) of the HEA states no agent of a university will be able to threaten, coerce, intimidate or discriminate against someone who may have information on a particular incident on campus.

How the provision will be implemented, however, has yet to be determined. According to S. Daniel Carter, director of public policy for Security On Campus (SOC), the penalties for violating the Clery Act are straightforward; but there still needs to be some structure to put the amendment into effect. Thus, the Department of Education (DOE) has allowed the public to offer their opinions on how the provision should be enforced.

Porcher Taylor III, J.D., an associate professor at the University of Richmond’s School of Continuing Studies and developer of the whistleblower provision, does not believe fines will make a significant impact with campuses that violate the policy. “Some universities have endowments bigger than the GDPs of some nations,” he says. “If they have to pay a $250,000 fine, that’s not going to [hurt] them.” Instead, Taylor suggests criminal sanctions as a penalty to those who are found guilty of intimidating good-faith whistleblowers. He realizes it’s not likely this will happen.

Although the kinks still need to be worked out, Carter believes the new whistleblower protection legislation will provide campuses with more resources to protect their students and staff. “I think [the addition of whistleblower protection] will be a tremendous assistance to holding the integrity of the Clery Act,” he says.

Suspected EMU Cover-up Leads to Action

Taylor was prompted to create the provision when he learned of the December 2006 rape and murder of 22-year-old Eastern Michigan University (EMU) student Laura Dickinson. EMU’s response to the tragedy eventually resulted in the school paying the largest ever Clery Act fine ($350,000) as well as $2.5 million to Dickinson’s family.

Immediately after Dickinson’s rape and murder, a few news outlets hinted that there could have been a cover-up by EMU during the investigation. Taylor had written articles about the Sarbanes-Oxley Act (SOX), a law that protects good-faith whistleblowers as a result of the 2001 Enron implosion, and wondered if there may have been someone at EMU with details about the incident, but was discouraged from speaking about it. With that in mind, Taylor sought to bring whistleblower protection to the Clery Act to protect good-faith whistleblowers from being intimidated by others.

Taylor partnered with University of Richmond’s Services Captain Beth Anne Simonds, who is responsible for all Clery Act compliance on her campus, and together they wrote an editorial for Campus Safety magazine (see “Clery Act Needs Whistleblower Protection”). “My strategy was if I could get this published and be in the public domain, I might have a chance to possibly raise the issue with Congress,” says Taylor. He then began working with SOC in hopes to bring his idea of combining SOX and the Clery Act to life.

It’s Official: An Idea Becomes a Law
In 1997, SOC raised a similar issue with Congress; however, it was not passed. Carter asked Taylor to draft some language for the bill so it could be sent to Congress. “The language he talked about from SOX didn’t really translate well to the HEA,” says Carter. “We took some of the language that we had introduced in ’97, took it to Capitol Hill and gave the reasons why [whistleblower protection] was still an issue.”

SOC met with the House of Representatives in October 2007, and in December, the revamped language was included in the Higher Education Reauthorization Bill by the committee. In February 2008, the bill was passed by the full House, and on Aug. 14, the HEA was signed into law.

Taylor was ecstatic when he heard the news. “It’s hard to imagine greater joy than having an idea that I came up with actually becoming a federal law. I’m deeply indebted to SOC for its pivotal role in this legislative achievement,” he exclaims.

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