Hate crime policies under fire

Hate crime and bias policies at Nevada's colleges will be reviewed and could be rewritten after a controversial draft policy at UNLV was lambasted by the system's chancellor.

The university system's general counsel, Bart Patterson, said Thursday that recent criticism from the ACLU and others has prompted him to review each school's hate crimes policy.

"Certainly, we're watching how the UNLV policy gets revised and changed," he said.

The policies, most of them newly adopted, have come under scrutiny recently.

The ACLU of Nevada has a problem with them in general, said its executive director, Gary Peck.

"There is a system-wide, pervasive problem with these codes," he said.

Nevada does not have a law against hate crimes, but does have sentencing enhancement guidelines.

Last year, the system's Board of Regents mandated that each of the institutions come up with a hate crimes policy.

Each of them has, with the exception of UNLV. The university is currently working on one.

But a draft of UNLV's policy has been criticized as vague. Critics say it allows anyone to report to the police anyone else they believe had said or done something offensive. Harsh words could be reported. A Confederate flag in a dorm room could be reported. The police would then be obligated to investigate.

UNLV President David Ashley has appointed a four-person committee to rework the policy. Chairing the committee is Christine Clark, the vice president for diversity and inclusion. Clark is seen as the guiding force behind the criticized draft policy.

Others on the rewriting committee are Juanita Fain, the vice president of student affairs, Richard Linstrom, the general counsel, and Cecilia Maldonado, the vice chair of the faculty senate.

University system Regent Cedric Crear, who chairs the board's cultural diversity and security committee, said it was the goal of the board to head off any potential problems before they came up.

"It's important to be proactive in our approach," he said.

He said he was committed to working with the ACLU, however, in making sure the board gets things right.

"No one's intention was to craft a policy that caused more problems," he said.

Patterson, the system's lawyer, said every workplace needs to have anti-discrimination policies, including the state's colleges and universities.

He said writing them is often more problematic at a college or university, a public forum where academic freedom is valued.

Peck and ACLU attorney Allen Lichtenstein said the policies in general are cause for concern because they often butt up against the First Amendment's free speech protections.

And, because the state does not have a law specific to hate crimes, the policies often go further than the law does.

"Clearly, the only time the police should be called is if there's a crime, or if there's a chance of a physical altercation, something like that," Lichtenstein said.

Sondra Cosgrove, the faculty senate president at the College of Southern Nevada, said the group that wrote that school's policy tried very hard to steer clear of any First Amendment problems.

She said the first draft they came up with was similar to the one now being criticized at UNLV.

"That's where we were back in October," she said.

They quickly rewrote it.

The policy now is sparse, covering less than two pages. Its definition of a hate crime: "CSN defines hate crimes in accordance with current law and code." It does not mention so-called "bias incidents," a much criticized feature of UNLV's draft policy.

UNLV's draft, by contrast, is 14 pages long. It defines hate crimes in a 40-word sentence and further defines "bias incidents" in a paragraph of 157 words.

Hate crimes refer to "any criminal offense committed against a person or property that is motivated, in whole or in part, by an offender's bias against actual or perceived race, religion, disability, ethnic/national origin identity or sexual orientation identity."

It defines bias incidents as verbal, written or physical acts that intimidate, interfere or harass based at least partly on bias against race, ethnicity, color, religion, creed, sex (including a "pregnancy related condition"), sexual orientation, national origin, military status, disability, age, marital status, physical appearance or political affiliation.

Lichtenstein said it is possible to craft a hate crimes policy without running afoul of the Constitution.

Such a policy would explain what the law allows and what it does not. It would explain how disputes could be resolved.

It would not go beyond the law.

"Protected speech needs to maintain its protection," he said.

Contact reporter Richard Lake at rlake@reviewjournal.com or 702-383-0307.