The Student Press Law Center blog
It's painfully well-established that colleges lie about student privacy to conceal public records they'd rather not disclose. When the Family Educational Rights and Privacy Act ("FERPA") is misused to withhold information about athletic scandals or employee misconduct, it's aggravating.
But when FERPA is misused to withhold information about campus sexual assaults, it's disgraceful.
Last Friday, the U.S. Department of Education, through legal counsel with the Justice Department, served notice that it would be joining the University of Montana's appeal of a district-court order requiring the disclosure of public records about how the university system handed a star football player's disciplinary appeal in a sexual assault case.
Despite the Obama administration's lip service to improving the transparency of how colleges deal with sexual assault, at the first opportunity to put that resolve to the test, the federal government is throwing its weight behind continued concealment.
Today, the SPLC sent a letter to Education Secretary Arne Duncan urging him to pull the plug on this misguided use of federal resources. As the letter points out, the Department rarely intercedes in legal disputes involving FERPA and access to public records -- and has never done so on the side of disclosure -- and to decide that this case merits an exception to the Department's normal practice of abstention is, to say the least, tone-deaf.
We hope that Secretary Duncan and the White House will do the right thing and rescind the Department's Dec. 12 motion to join the Krakauer case.
Tagged: Arne Duncan, FERPA, Jon Krakauer, news, recent-news, sexual assaults, University of Montana
"Campus safety" officers on private college campuses exist in a legal gray zone, walking the line between "security guard" and "police officer" -- at times with all the power but none of the accountability of the latter.
If a New York judge's ruling stands, security officers at Colgate University can't be held responsible for violating a student's constitutional rights when (according to a federal lawsuit) they confined him in the basement "holding cell" of a campus building in advance of a disciplinary hearing that was at least nine days away.
Abrar Faiaz claimed in a federal civil-rights suit that, when questioning him about a disciplinary complaint of dating violence, Colgate engaged in coercive interrogation techniques including depriving him of food and pressuring him to accept a one-way ticket home to Bangladesh.
Even after the interrogation ended, the suit alleged, a Colgate administrator told Faiaz he would be "detained" in the basement of a residence hall for at least nine days pending a disciplinary hearing. (He ended up staying only a day-and-a-half before a sympathetic faculty sponsor took him home.)
At a state institution, such behavior (if proven at trial) would violate multiple constitutional guarantees (due process and unlawful seizure, for starters), entitling the student to damages from any individual responsible for the infringement.
But because Colgate isn't a state institution, a federal magistrate judge threw out Faiaz's civil-rights claims last Monday.
In a Nov. 24 order, U.S. Magistrate Judge Andrew T. Baxter decided that Colgate public safety officers could not be held responsible under federal civil-rights law even if they did everything they're accused of, because Colgate police aren't state authorities:
The entire investigation was internal and led only to university disciplinary proceedings. The defendants did not exercise power possessed by virtue of state law and made possible only because they were clothed with the authority of state law.
The judge differentiated Colgate's police force from campus cops at Cornell University and at the University of Pennsylvania, where federal judges have decided that officers at private colleges who carry state arrest authority can be held liable for constitutional violations.
While Judge Baxter's ruling is a defensibly straightforward view of the law -- if you're not a state official, you're not liable for misusing state governmental authority -- it also leaves a troubling gap: A campus police officer can act like he has arrest powers, but not be accountable for exercising those nonexistent powers.
The disciplinary context removed Faiaz's case from the clearer scenario in which, when campus police act like "real" police -- making traffic stops or arrests -- courts have held them to the same constitutional standards as city or county officers.
The Indiana Supreme Court, for instance, has ruled that Butler University's police are subject to the same Fourth Amendment constraints as city or county police when conducting a traffic stop, because "[a] private entity is deemed a state actor when the state delegates to it a traditionally public function."
The Faiaz ruling doesn't leave students entirely defenseless. The judge allowed Faiaz to go forward on a state-law claim of false imprisonment -- rejecting the university's "did they SERIOUSLY say that" defense that Faiaz was not coercively imprisoned because he freely chose to stay.
When given the "choice" between the basement and the one-way ticket to Bangladesh.
Which Colgate's lawyers expansively described, in terms more suited to an announcer on "The Price is Right," as "a free trip to the comfort of his home and family." Judge Baxter wasn't buying. Colgate will have to answer to the claim.
Of broader significance to all students, the judge recognized that it's possible to hold a private college contractually responsible for the bargain struck when a student enrolls and is promised benefits set forth in the college's "bulletins, circulars, and regulations."
But apparently, nothing in the Colgate student handbook says, "We won't lock you in a basement," a buyer-beware tip for those choosing among colleges in the future. Because the judge dismissed Faiaz's breach-of-contract claim, finding that a student is owed no more than "substantial compliance" with the procedural formalities in a college's disciplinary code. Promises that a disciplinary system will be "fair" or produce "equal treatment" are just platitudes and are too indefinite to be contractually enforceable, the judge decided.
The Faiaz case, assuming it's not successfully appealed, is a cautionary tale for any student considering a private college. Along with asking how late the make-your-own-pizza bar is open and how many rock-climbing walls the gym has, prospective students and their families should ask demanding questions about what safeguards protect students against abuses by secretive police and disciplinary authorities. And if the answers aren't reassuring, take your business elsewhere.
Tagged: colgate, discipline, due process, Due Process-Discipline, faiaz, private college
An elementary-school principal is suspended from her job after accusations surface that she abused two kindergartners by dragging them down a hallway. When a reporter tries to review the most reliable evidence -- footage from a surveillance camera -- the school district claims that the video is a "confidential education record."
That, of course, makes no sense -- and now a state open-records panel has said so.
In an Oct. 22 ruling, the Connecticut Freedom of Information Commission decided that reporter Linda Lambeck of the Connecticut Post newspaper could have access to videos of the dragging incidents.
Complaints about mistreatment of the two children led Bridgeport's Board of Education to suspend Principal Carmen Perez Dickson, who retired rather than accept a transfer to a desk job with the district.
By the time Lambeck made her request under the Connecticut Freedom of Information Act, the videos were already in the hands of concerned parents and widely circulating around the district and online.
But -- in a refrain familiar to education reporters everywhere -- the school district cited the Family Educational Rights and Privacy Act and denied the newspaper's request.
FERPA is a narrow privacy statute that applies only to records that, as the Supreme Court clarified in 2002, are "kept by a single central custodian, such as a registrar" and that "directly" pertain to an individual student.
School lawyers largely don't -- or won't -- understand this. The Connecticut FOI Commission did.
The Commission cited two reasons for refusing to classify the videos as confidential FERPA records. Both reasons are noteworthy because they add to the growing consensus that FERPA must be applied in a common-sense manner as its authors intended.
First, the videos are blurry enough that the children in them can't be readily identified. This is yet another rebuke to the U.S. Department of Education's irrational view that a record even with identifying information removed can still be a FERPA record if the requester knows, or can figure out, to which student the record pertains. The Post obviously can figure out the identity of the dragged children, because at least one of the parents has come forward publicly and identified herself. Yet that, properly, did not factor into the Commission's thinking.
Second, the Commission ruled, the videos "directly relate to the conduct of the school principal and not to the students who appear in them." This is important. Schools and colleges frequently conceal information about misconduct accusations against their employees by mis-categorizing a complaint involving the mistreatment of students as a "student record," an issue central to an ongoing complaint against the University of Iowa, which refuses to explain the removal of its women's field-hockey coach.
The FOI Commission's unanimous ruling brings Connecticut in line with New York and Louisiana, where judges likewise have refused to classify surveillance videos as FERPA records.
The school district could appeal the decision, but has given no indication it will do so.
Have you run into a questionable use of FERPA to deny a request for access to government records? Report it to FERPA Fact and we'll see rate the accuracy of the agency's claim on the Arne Meter.
Tagged: Connecticut Freedom of Information Act, Connecticut Freedom of Information Commission, FERPA, open-records, public records, surveillance video
FLORIDA — The president of a Florida community college is attempting to bar the student newspaper from reporting on faculty contract negotiations and is accusing the faculty union of breaking a state law by speaking to the student press about the negotiations.
Ed Meadows, president of Pensacola State College, claims the student newspaper, The Corsair, would not have known about the non-student issue if faculty had not approached them with the idea and that they should not report on this issue because it isn’t about students, according to an Inside Higher Ed story. Editor-in-Chief Spenser Garber dismissed both of Meadows’ claims.
Faculty members were told that communicating with the student press about the contracts violates a state law that prohibits union members from “instigating or advocating” support from students, according to a letter from college attorney Michael Mattimore sent to the faculty union on Oct. 31.
The faculty union responded, claiming that the interpretation of the law was invalid and that the administration has been lying about the newspaper’s reporting.
The Corsair has published one story related to the contract negotiations so far. The student newspaper reported on Oct. 31 that 34 of 35 Pensacola State Faculty Association members who voted at an Oct. 9 meeting voted no confidence in Meadows.
“The constant bargaining has made the faculty feel that the administration does not have the faculty’s best interests at heart,” The Corsair reported. “This has caused a feeling of distrust in President Meadows and other members of the administration.”
Contract negations for faculty were sent back to the bargaining stage earlier this year after the proposed contract from administration was voted down by faculty, The Corsair reported in the same article.
Tagged: Florida, news, Pensacola State College, recent-news, The Corsair
One in five women will experience stalking in college and are hesitant to report the incident to police — especially campus police — according to a new study from the Crime Victims’ Institute at Sam Houston University.
According to the study, fewer than 20 percent of those women who say they experienced stalking while enrolled in college reported it to the police. Of the group who did report, 56.7 percent reported their claim to local police, while only 30.3 percent decided to go to campus police.
The study also published survey results of 56 police officers from Texas colleges responding to questions related to their understanding of stalking and official procedures to address it. The answers from respondents — most of them identified as police chiefs — show that seven out of 10 did not have specific guidelines at their institution for dealing with stalking cases, and that few of them work with off-campus organizations that help victims of stalking.
According to Texas law, stalking occurs when a person engages in potentially threatening conduct directed toward another person on more than one occasion that could lead to bodily harm or damage. Stalking can lead to a third- or second-degree felony charge, depending on the circumstances.
When asked if they understood federal mandates related to gender-specific issues, the majority reported they understood how the Clery Act and Title IX would be applied to cases of stalking, while only 48 percent said they understood how to apply the Campus Sexual Violence Elimination Act to stalking cases.
The study concluded that campus police could improve their practices and approaches to dealing with stalking by consulting outside groups, and that government officials, local communities and victim support services should “consider the needs of campus police departments and ways in which campuses can collaborate with and be supported by these agencies in their efforts to effectively prevent and respond to stalking on campus.”
The study’s suggests that universities in Texas struggle to address reports of stalking. How does your institution address similar reports?
Talk with your university or college police department and ask them the same questions in the survey related to their understanding of stalking and what procedures they have in place. Likewise, it would be helpful to speak to on- and off-campus support groups, as well as local police.
And as far as the statistics go, this study does include national figures that could be beneficial to your reporting.
Tagged: campus crime, Campus Sexual Violence Elimination Act, Clery Act, Texas, Title IX
New rules that change what colleges have to do under the Clery Act were published Monday. The new regulations — the result of months of discussions and negotiations following the 2013 passage of the federal Violence Against Women Reauthorization Act — are designed to lend greater transparency to the process by which colleges respond to crimes of sexual violence affecting students.
Here's the new information you'll have access to under the regulations:
- Statistics on dating and domestic violence, as well as stalking. These three types of incidents join the list of Clery-reportable crimes that must be reported in colleges' annual security reports and to the Department of Education.
- Statistics on how many reported crimes were ultimately "unfounded." Colleges are not required to report incidents if a law enforcement agency determines the report was false or "unfounded." Based on concerns that colleges were incorrectly "unfounding" reports, the new regulations require colleges to disclose in their annual security reports, and to the Department of Education, just how many reports have been "unfounded."
- Statistics on the number of crimes motivated by gender identity or national origin. These two categories have been added to the list of biases in the hate crime reporting section.
- A list of sanctions the college may impose following a disciplinary hearing for dating violence, domestic violence, sexual assault or stalking. Until now, the Department's Clery handbook advised colleges to make this information public in the annual security reports, but it was not required under the regulations. This list is now a requirement in the annual report. (Colleges have been criticized for punishing sexual assaults with penalties as light as a brief suspension or an apologetic essay.)
- Policy statements that explain, among other things, the options available to victims of sexual violence with regard to reporting the incident to law enforcement or the college, as well as protective measures, counseling options and health services. Colleges must also provide policy statements that explain their efforts to prevent sexual violence.
The new regulations go into effect July 1, 2015. However, the statutory provisions are already in effect, and the Department of Education has instructed colleges to make a "good faith effort" to comply right away.
A good story idea for student journalists is to ask colleges how they are complying with the new law and how they will incorporate the new regulations. (A look at the #SaVEOurCampuses hashtag turns up many complaints about colleges failing to disclose statistics about stalking, dating violence or domestic violence.)
To see all of the changes, read the final regulations.
Tagged: campus crime, Clery Act, recent-news
TENNESSEE — A state appellate judge has ruled that records about an alleged rape involving four former Vanderbilt University football players are not open to the public because the investigation is ongoing.
The appellate court’s decision, which reversed a county court’s earlier decision, determined that none of the records are publicly available because of a law that exempts investigatory records from disclosure, the Courthouse News reported.
In June 2013, the players were charged with five counts of aggravated rape and two counts of aggravated sexual battery each, The Tennessean reported. They were removed from the team the next month.
After the Metropolitan Nashville Police Department denied The Tennessean’s public records request for information about the case, the Nashville-based newspaper filed suit against the police department in February. The lawsuit claimed that any records that were created by nongovernmental entities and obtained by the police are not exempt from the state’s open records law.
Joining in on the lawsuit was The Associated Press, Chattanooga Times Free Press, Knoxville News Sentinel, The Commercial Appeal in Memphis, WBIR-TV in Knoxville and Nashville stations WTVF-TV Channel 5, WSMV-TV Channel 4 and WZTV-TV Fox 17.
In March, a Davidson County Chancery Court judge partially ruled in favor with the media companies and agreed that some of the records were open because they did not interfere with the investigation. These records included text messages, as well as university access card information, campus video and emails written by witnesses and defendants as long as they did not address the police or district attorney’s office.
“What happened in that dormitory and any examination of the conduct of Vanderbilt students and employees regarding the incident in question are newsworthy,” Perkins wrote, “but the Court’s review of the records and of the text messages shed very little light on official government conduct.”
Deborah Fisher, the Tennessee Coalition for Open Government executive director, wrote a column Monday criticizing the appellate court’s ruling. The TCOG was also a plaintiff in the case.
“The Court of Appeals in Nashville last week kicked the can farther down the wrong road when it expanded police powers so they could keep just about anything and everything they want secret from citizens,” she wrote.
Join us Tuesday, Oct. 7 at 2 p.m. to discuss how student journalists can report on the Clery Act, a federal law designed to provide information about crimes on campuses. SPLC reporter Sara Gregory and Columbus Dispatch reporter Jill Riepenhoff will answer questions about their recent reporting on the Clery Act.
At the University of Memphis, federally mandated crime reports would have the public believe that the college, with 22,000 students, averages fewer than two sexual assaults per year. At Jacksonville’s University of North Florida, home to 16,000 students, campus officials claim to have gone two straight years without a sex crime. Louisiana State (30,000 students) and Florida State (40,000) report a grand total of five sexual assaults each over the most recent two years.
This is, of course, nonsense. The college administrators who sign and file these patently false crime reports, year after year, are either indifferent to campus safety or are knowingly lying about it. And the federal crime reporting statute, the Clery Act, is so poorly enforced by a credulous U.S. Department of Education that the risk of getting caught and (minimally) fined – invariably, years too late to result in meaningfully improved reporting for the students who’ve been misled – effectively deters no one.
These are the takeaways from a devastating story published in today’s Columbus Dispatch as a joint project of the Student Press Law Center and the Dispatch’s investigative reporting team of Colin Binkley, Jill Riepenhoff and Mike Wagner. Reporter Sara Gregory, an SPLC journalism fellow, spent the past year analyzing 12 years of annual crime disclosures compiled by the Department of Education – analysis the Department has itself failed to attempt – and then wrestling with hidebound campuses over public documents that should have been readily disclosed.
Many anecdotal stories have emerged in recent months about individual colleges’ mishandling of violent crime, but today’s special report (“Campus Insecurity”) is the first to authoritatively quantify the magnitude of the undercounting. It’s enormous. Each year, one-half of major colleges claim to have experienced no violent crimes of any kind. Nearly 20 percent – one in five – claim there hasn’t been a single sexual assault in at least 12 years.
Years of systematic underreporting cannot conceivably have gone unnoticed by the Department of Education, the agency charged with enforcing Clery Act compliance – and yet seemingly it has. The Department has either been ignorant of, or complicit in, an industry-wide epidemic of “rape blindness.” In either event – incompetence or purposeful concealment – a thorough congressional investigation is warranted.
The systemic contempt for public accountability exemplified by colleges’ casual disregard of Clery Act disclosure obligations is symptomatic of a much larger cancer metastasizing within higher education – the cancer of image-obsessed concealment. It manifests itself most dangerously in falsified crime reports, but is being felt campus-wide in the obsessive secrecy enveloping college presidential searches, in unconscionably long delays and dubious “exemption” claims when the public seeks access to records, and in the explosive growth in P.R. functionaries who view their jobs as making sure no journalist ever gets access to an actual campus decision maker.
Congress cannot cure colleges entirely of their addiction to secrecy, but it can provide meaningful sanctions for those who disregard their crime reporting obligations. A start would be requiring the general counsel of every college to certify, under penalty of perjury, that each year’s crime statistics were compiled in accordance with the Department of Education’s official Handbook for Campus Safety and Security Reporting. The de-licensure and prosecution of just a few college attorneys will awaken a conscience (or a self-preservation instinct) in the rest.
This installment of “Campus Insecurity” is the first in a series of articles to be published in the Dispatch this fall examining where colleges are falling short in their duty to diligently investigate, punish and disclose campus crime. It’s required reading for anyone working at – or thinking of attending – any college or university, and it’s ripe for follow-up localization by college journalists across the country.
The SPLC/Dispatch team’s reporting was supported in part by a grant from the nonprofit Fund for Investigative Journalism , which helped underwrite the expense of voluminous requests for public records from colleges nationwide. Sara Gregory’s work for the SPLC is underwritten by a grant from the McCormick Foundation, which supports journalism of civic importance. Sara will discuss her reporting and take questions from college journalists as part of a keynote panel Oct. 31 at the College Media Association’s national convention in Philadelphia.
For a student or teacher trying to view an educational video or search online for a news photo, the two most frustrating words in the English language are: “Access denied.”
Excessive school Internet filtering is an annoyance across all educational fields, but it’s especially problematic for teaching journalism. Learning how to gather and publish information online requires access to search engines, blogs and social-media sites – all of which are frequently, and unnecessarily, blocked by school filters.
It’s commonplace for a journalism student assigned to do research on effective blogging practices to encounter a total blockade of WordPress, the world’s most popular online publishing platform with more than 60 million user sites. Or for a student who needs a public-domain photo to accompany a slideshow to encounter the “this-site-blocked” screen of doom when attempting a Google Images search.
For a student with adequate Internet access at home, school filtering may be at worst an inconvenient delay. But for the estimated 30 percent of American households without access to a high-speed broadband Internet connection, it may make the difference in completing an assignment.
During “Banned Books Week,” the American Association of School Librarians has designated today – September 24 – as “Banned Websites Awareness Day,” in recognition of the growing impediment that unnecessary school filtering presents to effective learning.
Blocking access to Google, Wikipedia or Twitter in the name of protecting kids against seeking naked pictures is both futile (when most students are walking the hallways with faster computers in their shirt pockets than the ones in the school library) and legally unnecessary.
While schools are prone to blame Federal Communications Commission regulations when filtering practices are challenged, that’s rarely the right answer. The FCC does require, as a condition of receiving federal technology discounts, schools agree to block websites containing images “harmful to minors.” Butthe Commission has unequivocally stated that the presence of some harmful content on some sub-pages does not justify blocking an entire domain – and specifically, that federal law does not require a wholesale ban on social media:
“Although it is possible that certain individual Facebook or MySpace pages could potentially contain material harmful to minors, we do not find that these Web sites are per se 'harmful to minors' or fall into one of the categories that schools and libraries must block.”
At times, website blocking can actually violate the law. The ACLU has successfully sued school districts for discriminatorily blocking access only to websites with information supportive of gay and lesbian students, while permitting access to sites that denounce homosexuality. (Because the First Amendment implies a right to receive information as well as the right to speak, a school restriction on access to information that is arbitrary or viewpoint-discriminatory can be challenged on constitutional grounds.)
What can students frustrated by excessive Internet filtering do? At a public school, use state open-records requests to obtain, and write about:
(1) Copies of any school policies, memos and internal emails between the principal’s office and the school district’s Information Technology department about the topic of Internet filtering.
(2) Any contracts or agreements with companies providing Internet filtering or monitoring services to the school or the district (as a bonus, you sometimes learn that the school is paying big bucks for a company to read students’ off-campus social media posts).
(3) Lists of “blacklisted” websites or words that trigger the school’s Internet filter (remembering that federal standards require screening only images and not words).
(The SPLC’s open-records letter generator provides a shortcut to create a request letter that can be emailed, faxed or hand-delivered to the school district headquarters and/or the principal.)
Is your school Internet filter getting in the way of teaching and research – or selectively blocking only one side of an issue? Have you written a story about filtering that’s worth sharing? Let the SPLC know.