A Light in the Darkness?
Two proposals to amend FERPA could affect access to disciplinary records. One could increase disclosure, while one could make it even harder to get records.
Two years ago, Georgetown University student Kate Dieringer was faced with a difficult decision: remain in the dark about the final results of her rapist’s campus disciplinary hearing or sign a contract with Georgetown vowing not to disclose any information about the hearing.
“Georgetown told me that under the Federal Educational Rights and Privacy Act, I had to sign,” Dieringer said.
Dieringer later found out Georgetown was incorrect. Under FERPA, a federal law that regulates the disclosure of education records, it is up to the school whether to disclose the “final results” of campus disciplinary hearings involving students found responsible for committing violent crimes and nonforcible sex offenses. While Georgetown may have the right to require such contracts from victims, the law does not require it. Dieringer said the school’s interpretation of FERPA is warped.
“They do not want prospective students and parents knowing that rape happens on their ‘safe’ campus,” Dieringer said. “And second, they do not want people knowing that assailants are usually admitted onto campus with minimal punishments, even when [they are] found responsible.”
In 2001, Dieringer was drugged and raped by a fellow student. But like many victims of crime on university campuses, she was not granted access to the results of her perpetrator’s hearing. Since the incident, Dieringer has tried to speak out against what she calls Georgetown’s unfair disclosure policies and FERPA’s overly broad protection for student criminals.
Dieringer’s situation is not an anomaly. Campus safety advocates say universities often use FERPA to prevent campus crime records from getting to the public and defiling school reputations. Journalists who report on campus crime repeatedly run into the FERPA excuse.
Under FERPA, a school can lose federal funding if it has “practice or policy” of releasing student education records –– including student disciplinary records –– without consent. Because of its broad scope and vague wording, FERPA has been controversial since its inception in 1974 and has undergone numerous amendments. But after many subsequent changes, some are still unsatisfied with FERPA.
In response to cases such as Dieringer’s, U.S. Rep. Rodney Frelinghuysen, R-N.J., proposed a bill that would amend FERPA to require schools to disclose the final results of campus disciplinary hearings involving crimes of violence and nonforcible sex offenses to the victims of those crimes. Frelinghuysen’s bill, HR 3097, would not require media access to campus crime records –– as many journalists and campus safety advocates would like –– but it would give journalists a greater chance of getting to the truth about campus crime by talking to victims. If this law were on the books when Dieringer was allegedly raped, Georgetown would have had no choice but to inform her of the final results of the hearing.
But release of campus crime records is not the only problem lawmakers have with FERPA.
Another amendment was proposed this year that some say could have the opposite effect of Frelinghuysen’s bill. U.S. Rep. Robert E. Andrews, D-N.J., proposed HR 1848, which would allow students and parents to sue schools under FERPA for disclosing education records without consent if they prove the disclosure harmed them. Third parties who might be injured by disclosure, such as business partners or family members, would also have the right to sue. Andrews said he proposed the bill to create more ways to punish schools for violating FERPA.
The two amendment proposals are not diametrically opposed, but because FERPA does not distinguish between education records and disciplinary records, the bills butt heads in the area journalists and campus safety advocates are concerned about most –– access to records of campus crime.
Here is the problem: While Frelinghuysen’s bill could permit greater access to campus crime records, some say Andrews’ bill could prompt schools to withhold more records due to fear of lawsuits. Universities also oppose Andrews’ bill because they say lawsuits would threaten school finances.
The debate about FERPA and campus crime disclosure is nothing new. Five years ago, FERPA was amended to give schools the choice of whether to disclose the “final results” of certain campus disciplinary hearings. Prior to 1998, schools did not even have the option of releasing, for example, the result of a student rapist’s hearing to the rape victim, according to the U.S. Department of Education. Several court decisions in the early 1990s disagreed with that interpretation of the law.
However, the impetus behind each bill is more complex than its effect on campus crime disclosure. Each bill has a personal story behind it.
Andrews’ bill is a response to a U.S. Supreme Court decision last year in which former Gonzaga University student Ru Paster argued that he had the right to sue under FERPA. Paster sued for violation of privacy when a Gonzaga administrator released inaccurate information about him to a prospective employer, which he said prevented him from getting work as a teacher.
The administrator, Roberta S. League, allegedly overheard a conversation in 1993 that Paster was involved in a sexual assault. League investigated the rumor and informed Paster one year later that he was ineligible for teacher certification because he lacked sufficient moral character. The allegations against Paster could not be proven and no criminal charges were filed. Paster sued League for $1.2 million under FERPA but the U.S. Supreme Court sided with Gonzaga, ruling that FERPA does not allow individuals to sue under it.
Even though Paster was awarded more than $700,000 in a separate defamation lawsuit under state law, Andrews responded to the Gonzaga case by introducing a bill that would allow lawsuits under FERPA.
Andrews has said that at least five instances of privacy violations occurred in his own district during the last few years. One of the cases Andrews cited involved a man who had completed a substance abuse program at his college but later did not get a job because the school erroneously sent out medical information to the man’s prospective employer.
But others, such as Daren Bakst, president and general counsel for the Council on Law in Higher Education, cite the Gonzaga case as an example of why Andrews’ bill is unnecessary.
“State law protects students seeking damages, just as it did in the Gonzaga case [where Paster was awarded $700,000 under state law],” Bakst said. “The bill will create a litigation nightmare for schools and a lot of frivolous lawsuits.”
Andrews told the Chronicle of Higher Education that he does not think colleges will be flooded with lawsuits because of the high expense of litigation.
But S. Daniel Carter, senior vice president of Security on Campus Inc., a campus safety watchdog group, said the two bills, if passed, would not mesh unless FERPA undergoes more changes.
Carter said discrepancy between the two bills could easily be solved by amending FERPA to differentiate between education records and campus crime records. If that happened, students could be given the right to sue for nonconsensual release of education records, such as test scores, without any negative effect on media access to campus crime records. Until that happens however, passing Andrews’ bill will have a “chilling effect on campus crime disclosure,” Carter said.
Reasons for disclosure
Carter said he is also a firm supporter of Frelinghuysen’s bill. During the last few years, Carter has worked extensively with the family of former Georgetown University student David Schick, after whom Frelinghuysen’s bill –– known as the David Schick Honesty and Campus Justice Act --–– is named. The bill was proposed after Schick, 20, died in a campus brawl late one night in a Georgetown parking lot in 2000.
The police ruled Schick’s death to be an accident and left it up to the school to punish the students involved in the brawl. Georgetown made the student who hit Schick, causing him to fall, hit his head and eventually die, to write a 10-page reflective essay on the incident. His identity was not released.
“Perhaps if this information had been made public, this community would have demanded changes to the disciplinary process and disclosure, changes that would discourage future violence such as the homecoming weekend assault or Kate Dieringer’s rape,” the Schick family said.
The Schicks were only able to obtain the final results of the disciplinary hearing involving their son’s death after making its disclosure part of a settlement agreement resolving a lawsuit against the student who injured their son.
Following Schick’s death, Carter’s organization and the Schick family lobbied for a new amendment to FERPA that would hold students and schools more accountable for campus crimes. The result was Frelinghuysen’s bill.
Open-records and campus-safety advocates see the bill as a step in the right direction, but many say it does not go far enough. As the bill travels to various committees for review, advocates such as Gordon D. McKerral, national president of the Society for Professional Journalists, are trying to broaden its scope.
“While SPJ certainly endorses the goal of Rep. Frelinghusysen’s resolution, it urges your committee to go further,” McKerral wrote in a Sept. 19 letter to Chairman John Boehner of the House Committee of Education and the Work force, where the bill was being reviewed at the time. “The media remain dedicated to keeping campus communities informed but routinely get stymied when schools use federal privacy laws to hide serious crimes from the public.”
Frelinghuysen’s bill passed through the House Committee on Education and the Workforce and was referred Oct. 6 to the Subcommittee on 21st Century Competetiveness. Andrews’ bill is still under review at the Subcommittee on Courts, the Internet and Intellectual property.
Neither Frelinghuysen nor Andrews responded to requests for comment on the bills.
Meanwhile at Georgetown, Dieringer, now a junior, is still trying to educate her fellow students about what she calls Georgetown’s misuse of FERPA so that her story does not continue to repeat itself. Dieringer has campaigned for more disclosure of information about students found responsible for violent acts.
“It’s absurd to cause further harm to the victim by denying them the outcome of this painful process,” Dieringer said.
Georgetown University, reports, Winter 2003-04