U.S. v. Miami University: A step back in the battle for campus crime info

A step back in the battle for campus crime info

ARLINGTON, Va. -- After a March 20 federal court ruling, two Ohio universities may now be prohibited from releasing certain campus disciplinary reports that identify individual students. But the battle for access to campus crime information maintained exclusively in campus disciplinary records is far from over.

The ruling in U.S. v. Miami University,No. C-2-98-0097 (S.D. Ohio, March 20, 2000) granted the U.S. Department of Education's request for a permanent injunction prohibiting Miami University and Ohio State University from releasing student disciplinary records covered by the Family Educational Rights and Privacy Act (FERPA), also known as the Buckley Amendment.

The case arose after the Ohio Supreme Court ruled in July 1997 that the student newspaper at Miami University was entitled to student disciplinary records under the state open records law and that FERPA did not prohibit the release of those records. After that decision, the Washington, D.C.,-based Chronicle of Higher Educationrequested access to disciplinary records from Miami and Ohio State as part of its ongoing coverage of campus crime. With the support of the institutions, the Department of Education sued to prevent the schools from having to comply with the Chronicle'srequest. The Chronicleintervened to assert the public's right of access to information about criminal behavior maintained in internal campus disciplinary proceedings.

The court's ruling, which is in direct conflict with other court rulings from around the country, includes several important holdings:

1) Despite the fact that FERPA has no explicit provision allowing the Department of Education to sue schools to force compliance, the court read such a provision into the law. Campus crime activists find it troubling that the Department has refused to punish any school for failing to release crime information as required by federal law, yet it felt justified in taking the extraordinary step of suing to prevent the release of information about campus crime in this case.

2) Other federal and state courts have said that FERPA does not prohibit the release of any student records, it only creates potential consequences (financial penalties) for schools that have a policy and practice of releasing those records. This court disagreed. It said that FERPA "imposes a direct obligation on universities not to disclose" the disciplinary records at issue. This holding is perhaps one of the most troubling in the entire decision because it basically says that the federal government can prohibit the release of the records of a state government agency even when the state legislature and state courts have determined those records should be open to the public under a state open records law. Moreover, it said that such a federal limitation does not offend the First Amendment.

3) Also contrary to other court rulings, this court held that disciplinary records should be considered education records under FERPA and do not fall within one of that federal statute's exemptions. The court gave great deference to the Department of Education's interpretation of the law, despite the fact that other courts have routinely rejected the Department's interpretation. On this issue, at least, the court recognized that its interpretation was questionable. It noted that "[o]ne could construe the language [of FERPA allowing disclosure of records of a campus law enforcement unit] to include disciplinary records of the type at issue in this case." But it deferred to the Department of Education's interpretation of the law.

4) The most laughable part of the court's ruling comes near the end. In response to the Chronicle'sargument regarding the risk to student safety posed by a school's refusal to release disciplinary records detailing criminal behavior, the court said that students can get all of the crime information they need from campus crime statistics. The statistics schools are required to release annually under federal law "are adequate to inform students, prospective students and parents about the safety of various college campuses." No mention was made of the fact that those crime statistics are 10 months old by the time students receive them or that most student editors (and Congress' own General Accounting Office) tell us that schools routinely under-report statistics out of sloppy record-keeping if not ill intent. One wonders if the judge would be willing to make this naive assertion to a young woman who becomes a victim of sexual assault perpetrated by a student athlete found guilty of a similar offense two months earlier in a secret campus disciplinary proceeding.

The Chroniclehas not yet indicated if it intends to appeal the court's decision or pursue some other legal remedy for access to the disciplinary records it seeks. Unless or until it does, this decision will allow these two Ohio institutions to hide serious criminal incidents from unsuspecting students by channeling them into a secretive campus disciplinary process.

In the meantime, the Student Press Law Center offers a couple of caveats:

First, the ruling only directly affects the two schools involved in this case -- Miami University and Ohio State. Schools in other parts of Ohio as well as those elsewhere in the country are not prohibited from releasing any disciplinary records by this ruling. (Other schools in the southern half of Ohio could expect to be subject to the same interpretation of FERPA that this court offered, but they are not a party to this court order prohibiting the release of disciplinary records.) It remains to be seen if the U.S. Department of Education will be willing to file suits similar to this one in court's across the nation.

Second, this court admitted that the release of some disciplinary records was required of these institutions. The outcomes of disciplinary proceedings where a student has been found guilty of behavior that would constitute a crime of violence or non-forcible sex offense may be released under FERPA. And according to the Ohio Supreme Court's 1997 decision, public colleges and universities are compelled by the state open records law to do so. Although courts in many other states have not yet had occasion to rule on whether their state laws require the release of this information, it is fair to say that most public schools in the country will be obligated to provide the information as well. (And, of course, disciplinary records that do not contain personally identifiable information about individual students were never covered by FERPA in the first place.)

And finally, no matter what this court or any other says, those demanding full disclosure of campus crime information are on the moral high ground. Talk is already afoot of a legislative response to this decision, and members of Congress would certainly profit from hearing the experience of the campus press in getting access to crime information. Most college journalists agree they have an obligation to provide their readers and viewers with the information that allows them to live safe and secure lives on campus. This case may be a setback in that effort, but it is far from being the last word on the public's right of access to information about campus crime.

The text of the court's decision can be found online at: http://www.campussafety.org/publicpolicy/courts/muoh/03202000.html.

For additional information contact:

Mark Goodman, Executive Director Student Press Law Center (703) 807-1904