Violent Crimes, Secret Courts

Congress passed a law explicitly allowing colleges to release the results of campus disciplinary hearings that involve violent crimes or nonforcible sex offenses, but student journalists still face obstacles in obtaining this information

Behind Closed Doors Since the 1960s, administrators have authorized campus disciplinary boards to punish students charged with violating school rules such as cheating or plagiarism. But as criminal activity has increased on college and university campuses, these courts have begun to hear more and more cases relating to criminal behavior, including sexual assault and physical abuse, as well.

But unlike criminal trials, these hearings are routinely conducted behind closed doors.

This school-sanctioned secrecy from the public and the media has become a source of contention for many campus reporters who believe their schools are using the disciplinary process to prevent public access to crime information.

Erin Tate, student journalist and vice president of the Virginia Tech student chapter of the Society of Professional Journalists, said denying access to these records endangers the very students the school should be trying to protect.

"More often than not, schools attempt to justify hiding information by saying they are protecting a student's privacy, but by protecting the student who committed the crime, the school is endangering the rest of the student body," Tate said.

College administrators say protecting both the accused and the victims is essential to the mission of campus courts. They argue that these proceedings are an arm of the educational institution, not the law, and should be treated as learning opportunities, not criminal trials.

Furthermore, the penalties involved in campus court proceedings are much less serious than those in criminal courts. The maximum penalty a campus court can levy is expulsion.

Richard Olshak, president of the Association for Student Judicial Affairs, an international professional association of student judicial affairs officials, said many students who go through the disciplinary process do so on the condition that the information they provide will remain confidential.

"There are a number of problems that can arise if there is too much access," Olshak said. "I have had many students come through the disciplinary process because they knew it would not come before public scrutiny. Everything would be kept confidential on both sides of the fence."

"We are interested in preserving the integrity of the academic community, and we are not interested in an open debate in the public," Olshak said. "This is not a criminal proceeding. If it were, it would not look like an educational process anymore. In a worst case scenario, we will have a student who will not utilize this process anymore because everything ends up blasted in the paper or else the student just decides to transfer to another school."

Campus media, on the other hand, argue that denying public access to these records infringes on their obligation to inform other students about information relevant to their safety on campus.

"Students have a right to know how their school protects them, and whether or not the person sitting next to them committed violent acts," said Daniel Carter, vice president of Security on Campus, a nonprofit group working to reduce campus crime. William Lawbaugh, chair of the Society of Professional Journalists' Campus Courts Task Force, said open proceedings also facilitate student trust in the campus judicial system and school officials.

"The Sixth Amendment guarantees you a public trial," Lawbaugh said. "But there are three places you can still get a private trial: Cuba, the [People's Republic of China] and some American college campuses. What in the land of Jefferson and Monroe are we teaching our college students by setting up star chambers and kangaroo courts? Certainly not good civics." According to Carter, the release of campus disciplinary records is pertinent to the student body and should be readily available to college journalists.

"Traditionally in this country, matters affecting the public, especially the public's safety, have not been considered private matters, and when a college's campus court deals with violent misconduct, it is no different," Carter said. "Just because someone is a college student, that does not give them a special right to have violence handled privately."

Access Denied For years, colleges and universities claimed they were prohibited from releasing students' disciplinary records because of the Family Educational Rights and Privacy Act, a federal law that creates potential penalties for institutions receiving federal funds that disclose students' education records without their consent.

But as the number of violent acts adjudicated by campus courts increased, organizations like Security on Campus began pressuring Congress to change the law to make clear that disciplinary records involving criminal behavior were exempt from the limitations of FERPA.

In 1998, Congress amended FERPA to allow, but not require, schools to release the outcomes of disciplinary proceedings in which the student involved has been found responsible for a violent crime or nonforcible sex offense as well as the name of that student and the disciplinary action taken by the university.

Many public colleges and universities must now release this information under their state open-records laws. Most private schools are not subject to such requirements, although they can release the information if they choose.

But Carter said ignorance of the law and ambiguity over the law's terms have prevented many journalists from getting access to these records.

"Based on the calls we take, I would have to say I think that many student reporters are ignorant of the provisions in their state public-records laws," Carter said.

According to results from a nonscientific survey of college journalists conducted by the Student Press Law Center at the National College Media Convention in Washington, D.C., held Nov. 8-10, 52.8 percent, or more than half of those surveyed, said they had not tried to access records stating the outcomes of disciplinary or campus court proceedings.

Forty-four percent of the students who attempted to access information from either disciplinary files or campus court proceedings said they were not successful.

Carter said this is because university officials will go to great lengths to protect information that they feel will harm their school's reputation.

"Schools often prefer to handle matters in house so as to avoid bad publicity and outside interference in what they see to be an educational matter, even when it involves violent misconduct," Carter said.

Mary Beth Murtha, managing editor of the BG News, the student newspaper at Bowling Green State University, was one of the 44 percent of student journalists who tried to get copies of judicial records but failed.

Murtha said Bowling Green administrators refused to release disciplinary information about a specific student, and newspaper staffers did not know enough to question them.

"We were simply told that under FERPA they could not tell us anything except to say that they were handling it," Murtha said. "We have not contested this because the information that we had on FERPA did not make it clear, and we were not getting anywhere with our sources."

Murtha believes hiding disciplinary records from students encourages similar misconduct in the future and overlooks effective solutions.

"I think it would have been helpful for other students to see that there are consequences for inappropriate behavior," she said.

Know Your Rights Carter advises students struggling to obtain judicial records to learn more about their rights to access these records before proceeding.

"Dealing with each situation will require a different approach," Carter said. "Whether or not access to the records is achieved or not will largely depend upon knowledge of the laws and policies involved. In some cases a request can be made under state public-records laws, although a ruling by a court or attorney general may be required before a school will be willing to comply."

Megan Lewis, editor of The Herald, the student newspaper at Arkansas State University, said even after offering a variety of legal documents to support the newspaper's claim, administrators refused to acknowledge the paper's right to access disciplinary records until they were forced to do so by the state attorney general.

"It was not until the school asked the attorney general to step in that they decided to take us seriously," she said. "Even though we approached officials in the office of judicial affairs with a copy of [SPLC's booklet] Covering Campus Crime along with the state's open-records law, I doubt they believed that we, as students, would follow through with any of our inquiries."

The state attorney general issued an opinion Feb. 20 advising university officials that the state's freedom of information act requires them to disclose the outcome of certain student disciplinary proceedings.

This is the first time the state has considered whether university disciplinary records constitute "scholastic records," which are exempt from disclosure under the state law.

According to Carter, the key to working with administrators to access these records is persistence.

"Students have a right to know about how their school protects them, and whether or not the person sitting next to them in class has committed violent acts," Carter said. "They need this information so that they can know what precautions to take to avoid victimization themselves. It also will serve as a deterrent-assuming the school is properly responding to violence-to other students committing violent acts."

The Society of Professional Journalists resolved at its 2000 convention to urge campus and professional news media outlets to seek more information about campus crime, including seeking rulings from schools, state attorneys general and courts on whether their state open-records laws require the release of disciplinary records.

The Virginia Tech chapter of the Society of Professional Journalists recently collaborated with the student government association in order to pressure the university to disclose the judicial records of students found responsible for violent campus crimes to the public.

Tate said the task force met Feb. 21 to develop a strategy for convincing the office of judicial affairs to revise its policy. "Within the next year we hope to propose legislation to the student government, or even better, make a change in the system, that will allow the public to review this information," she said.

Unfortunately, some states, including Virginia, have education-records exemptions to their open-records laws that allow schools to refuse to release this information.

Changing the Law When the law is not on their side, Carter suggested that student journalists explore other opportunities, such as lobbying their state legislators to change the law.

Student journalists at Portland State University are considering this step after losing their battle with school officials for access to disciplinary records.

Andrea Barnum, editor of The Portland State Vanguard, said the paper tried to access the results of disciplinary proceedings involving an elected university student official accused of sexual assault.

Barnum said administrators denied the paper's request for information, and the state attorney general affirmed in October the school's refusal, citing state law.

Carter advises journalists to learn their rights within the law before they attempt to access this information.

"When denied access to campus court records, the first step is to understand the grounds on which the denial was made," Carter said. "Although federal law -- FERPA -- now permits some records to be disclosed, it does not apply to all, and some state laws will continue to preclude access under state public-records laws at public institutions."

Leading the Way: 'We have had no complaints' The University of Dayton, a private Catholic university, decided in 1999 to voluntarily disclose the disciplinary records of students who are found responsible for violent crimes.

Although private schools are not subject to the same rules of access, Carter said that should not stop student journalists from trying to convince school officials of the benefits of disclosure.

"At private institutions they should be able to release everything FERPA permits but will not be required to," Carter said. "Denial there may be based on a policy, which should be construed as a contract with the students whose records are being sought, or merely that there is no legal obligation to release the records."

William Schuerman, vice president of student development and dean of students at Dayton, said the university decided to change its policy after Congress passed the 1998 amendment to FERPA.

"We want to be as open as we can with our students and our community, particularly about things involving public safety and violations that the community needs to know about," he said. "We tried to balance protecting people's privacy rights with letting students, particularly the student press, have access to student safety records and outcomes of judicial proceedings."

"After two years we have had no complaints," he said.

Schuerman, however, said he was not sure whether the university has actually released the names of any students found responsible for violent crimes on campus since the policy was changed. He added that he does not know whether any violent crimes have been adjudicated by the university during that time period, either.

But in a recent proceeding in which a student was found responsible for sexual misconduct, the university refused to release the name of the student involved to the student newspaper. This refusal was based on advice from the university's counsel, according to Schuerman.

"There was nothing to suggest that this fell under the stipulations under FERPA which allow us to reveal those records," he said.

The changes to FERPA have not led most private schools to change their policies, however.

Administrators at Georgetown University refused to release the campus court records of five students tried by a campus court in the beating of a fellow student -- even to the dead student's family.

This secrecy sparked outrage among the university community, leading to a call by the student government for school officials to release detailed information to the student's family and more general information to the student body.

In response to this criticism, the vice president for student affairs asked the disciplinary review committee to examine Georgetown's current policy regarding the disclosure of disciplinary hearings and suggest changes. The committee's findings are expected to be released in May.

As violence on college campuses shows no sign of declining, Carter said he believes outside pressure from state attorneys general, legislators and the media will eventually force schools to address these issues.

"As was the case with police reports, I believe that schools will eventually become very open to student access to court records," Carter said.

  • For a more detailed explanation of the legal issues surrounding the release of campus crime information and steps you can take to get access to campus crime records at your school, download the SPLC publication Covering Campus Crime for free from the SPLC's Web site.
  • Also see the Security on Campus Web site.

reports, Spring 2001