A matter of interpretation


Is the Education Department's spin on federal law keeping university crime information and other records under wraps?





From college campuses to the U.S. House of Representatives, the question of how open campus crime information should be is a topic of continued debate.

Many school administrators claim that the Family Education Rights and Privacy Act (FERPA), commonly referred to as the Buckley Amendment, forbids them from disclosing crime information about individual students in discipline records.

But another federal law, the Campus Security Act mandates that schools report campus crime statistics.

Both of these laws are enforced by the U.S. Department of Education. But critics say the Department is applying an overbroad interpretation of FERPA, and that they are allowing schools to ignore the mandates of the Campus Security Act.

Partially because of this belief that the Department is not doing its part to enforce laws that promote fair and open reporting of campus crime and freedom of information, many have thrown support behind House Bill 715, the Accuracy in Campus Crime Reporting Act (ACCRA), which would specifically exempt disciplinary records from FERPA protection, and mandate a system of open campus crime logs.

Monitoring compliance

Steve Geimann, president of the Society of Professional Journalists, said his organization has been in support of ACCRA before it was even a bill. The bill would close loopholes in campus crime reporting and specifically exempt campus judicial records as being protected by FERPA. (See story, this issue.)

Geimann said this legislation is necessary, partially because of the Department of Education’s lax enforcement of the Campus Security Act.

“The Department of Education has relinquished its role in enforcing the rules,” Geimann said. “It is a dereliction of duty to not pay attention to rules passed in 1990. People have lost sight of what is important.”

But Margaret Jacobson, who filed the first complaint against a school under the Campus Security Act, said the problem is not with the Department of Education, but it is the fact that people are not filing complaints against their schools as she did at her former school, Moorhead State University. (See story, this issue.)

“The Department has taken a whacking. Nobody is out there filing the complaints. Not one journalist except for Jennifer Markiewicz and Michael Matza has filed a complaint with the Department of Education,” Jacobson complained.

Markiewicz filed a compliant against Miami University of Ohio and Matza against the University of Pennsylvania.

Both schools are currently being reviewed by the department for compliance with the Campus Security Act.

Jacobson said she believes the department is doing everything it can to enforce the law, and the only way to improve universities’ compliance is to file complaints.

“I’m more than willing to assist people in framing [complaints],” she said. “I haven’t found a school yet that complies with the Campus Security Act.”

To date, the Department has conducted or is in the process of conducting five reviews of schools for compliance with the Campus Security Act. Moorhead State and Virginia Tech have both recently been found to be in violation of the act, and reviews are still underway for Miami, the University of Pennsylvania and Clemson University.

Jane Glickman, a public affairs official for the Department of Education, said the Department only reviews schools when a formal complaint is filed.

She said other schools are monitored for compliance through regular audits that all schools that take part in federal financial aid programs must go through.

Although Moorhead State could now be penalized for its violation of the law pending a decision by the Department’s administrative action and appeals division, no school has been assigned a penalty by the Department yet for failure to comply with the law.

The reason for not penalizing schools, according to a 1996 quote in The New York Times by David Longanecker, assistant secretary for Secondary Education, is that the Department of Education believes the majority of schools that have compliance problems have not intentionally broken the law.

Stephanie Babyak, a public affairs official for the Department, said penalizing schools is not the main goal of a department review.

“There can be a range of penalties, but the main objective is to get the schools into compliance,” she said. “If there is something that needs to be changed, we then work with the school to bring them into compliance.”

What the numbers show

Exactly how many schools are in violation of the Campus Security Act remains in dispute.

According to a Department of Education study released in February, just over 10 percent of schools are in violation of the act.

The study, which was released 18 months late, found that the schools in violation were not compiling mandatory reports, and the biggest violators of the act tended to be trade schools and colleges with less than 200 students.

But other studies conflict with the Department of Education’s findings.

A 1995 study conducted by Bonnie Fisher, a University of Cincinnati political science professor, reported that more than 50 percent of schools did not make security information available to students who requested it, a violation of the act. About 36 percent of schools were fully complying with the mandates of the Campus Security Act.

In March, the U.S. Government Accounting Office released a report that found schools are not including all crimes in their reports, and are using the wrong categories for reporting crimes.

The GAO asserted that the department’s lack of enforcement is the main reason for inaccurate reporting practices of schools.

But the Department claims it can only do so much to enforce the act.

On several occasions, Longanecker has stated that the department does not have the funding or resources necessary to effectively monitor schools for compliance.

FERPA’s role in limiting disclosure

For access advocates, open crime statistics are just part of the battle. Public campus police logs and disciplinary records regarding criminal incidents are even more important.

The most common justification schools use for keeping campus courts and incident reports closed is that opening such proceedings and records would violate FERPA.

FERPA was enacted with the goal of protecting students from having their privacy rights compromised by schools. The act allows for the penalizing of schools that release students’ private “education records” without a student’s permission.

But what constitutes an “education record” is a matter of debate. Congress amended the law in 1992 to specifically exclude campus law enforcement unit records from that definition.

But the Department of Education’s recent backing of the University of Maryland’s assertion that records of student athletes’ parking violations are exempted from disclosure by FERPA indicates they are still giving “education records” a broad definition.

Elizabeth Koch, attorney for the Diamondback, the newspaper that has filed a suit against the University of Maryland for keeping the parking records closed, said the Department’s stance on FERPA ignores the spirit of the law. (See story, this issue.)

FERPA was created with two goals in mind; the primary goal was to make sure students’ own records were available to them,” Koch said.

“The second part was to protect education records from disclosure. The DOE fails to distinguish between those two points.”

Koch pointed to the fact that in past cases, the Department has taken a narrower stance on what constitutes an education record.

“Apparently because it suits their purpose, they have changed their minds,” she said.

Ben Clery, president of Security on Campus, a watchdog organization concerned with campus safety issues, says the Department has taken a ridiculous stance on FERPA and what it should protect from disclosure, especially in the University of Maryland case.

“It’s absurd. I can’t believe the Department of Education would back that kind of nonsense,” Clery said. “It seems like sometimes with the DOE, the right hand doesn’t know what the left hand is doing.”


Fall 1997, reports