Constitution Check: Does Congress have the authority to require universities to monitor campus crimes?

Lyle Denniston examines a claim that the federal Clery Act, a 21-year-old law designed to improve college campus security, is beyond Congress’s legislative powers. The federal government is now investigating whether Penn State University violated the Clery Act by failing to deal with a years-long sex scandal in its football program.

The statements at issue:

“Although I fully support PSU receiving the severest possible sanctions, I wonder whether the Clery Act is constitutional. What possible source of authority is there for the Congress to mandate the reporting of sexual abuse claims at universities? The Commerce Clause? I think not. And after the Obamacare case, Congress’s spending power has been severely curtailed. (And that appears to be the only root authority for the Clery Act—you want federal dollars, then you better comply.)”

– A comment filed on The Wall Street Journal’s Law Blog by a reader identified only as “Bill,” on July 12, reacting to the “Freeh Report” on the Penn State scandal. Any sanctions against the university under the Clery Act by the federal Department of Education following its investigation would be separate from those imposed by the NCAA on the football program this week.

We checked the Constitution, and…

The Clery Act has gained wide public support, and an increasing amount of support from colleges and universities, since its initial passage in 1991. While a university faced with the potentially heavy fines that can be imposed for violating the act might be reluctant, for public relations purposes, to pursue a constitutional challenge, such a legal protest may not be an entirely fruitless effort.

The reader “Bill,” in his comment to the Law Blog, accurately pinpointed the two possible constitutional foundations of the Clery Act: the Commerce Clause or the Spending Clause. Congress may have thought, in passing that law, that it was reaching a kind of activity—higher education—that does have a considerable impact on commerce among the states. Or it may have believed that, since it was imposing campus crime reporting duties on colleges as a condition for their receipt of federal funds, it was using its power over federal spending. The lawmakers don’t always say what powers they are employing when they pass a given law.

About Constitution Check

  • In a continuing series of posts, Lyle Denniston provides responses based on the Constitution and its history to public statements about its meaning and what duties it imposes or rights it protects.

Campus crimes are, of course, matters of primary concern to state and local government, under their broad “police powers” that are protected under the 10th Amendment. Although Congress for decades has been expanding the federal role in criminal law enforcement, there are constitutional limits on its authority to do so, and the Supreme Court recently has been doing a good deal more to enforce those limitations.

It has been clear for more than a generation that the Supreme Court has been quite skeptical about Congress’ power to reach deeper into local activity, including local crime. In the 1995 decision in U.S. v. Lopez, it ruled that Congress could not regulate the carrying of guns near schools. In the 2000 decision in U.S. v. Morrison, it ruled that Congress had gone too far in the Violence Against Women Act in regulating domestic violence, a local crime.

Both of those laws had been based explicitly upon Congress’s power over interstate commerce. But the court concluded that it was a stretch to treat the carrying of guns and acts of domestic violence as commercial activity or as interstate in impact.

The court’s decision in the health care case this June went further than the court has gone in decades to restrict Commerce Clause legislation that does not involve actual voluntary activity in the stream of commerce. That decision, as reader “Bill” said, might raise new problems for the Clery Act.

The health care decision also embraced—for the first time in history—the constitutional argument that Congress may act unconstitutionally in the use of its spending power if it imposes too heavy a burden on states as the price of receiving federal funds. States, the court said, cannot be coerced into a program, and must be given the choice of opting out rather than satisfying such conditions.

There is another potential constitutional argument that universities might think about advancing should one or more of them take on the Clery Act in court. That is the argument that running a campus, and controlling student life, is protected by concepts of academic freedom under the First Amendment. That might not be a very strong argument against law enforcement by local police, but it might have more to it as a challenge to federal management of campus life.

Examining the possible constitutional vulnerability of the Clery Act, though, may not have much to do with the real world of campus life in the wake of the Penn State scandal. Governing boards and academic leaders of universities may well find—in the current atmosphere—that it would be very politically risky to try to fend off a law as popular as this legislation is.

Lyle Denniston is the National Constitution Center’s Adviser on Constitutional Literacy. He has reported on the Supreme Court for 54 years, currently covering it for SCOTUSblog, an online clearinghouse of information about the Supreme Court’s work.

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