Maryland AG: Colleges can't use FERPA to conceal discipline of sexual assaults



It's understandable when colleges use their confidential in-house disciplinary systems to afford a "do-over" to a student who violates a campus rule (say, yelling profanities at a professor) or commits a minor, victimless offense (say, sneaking a six-pack into the dorm). Such behavior would never result in a criminal charge if it happened at an off-campus apartment, and it seems inequitable to inflict a permanent scar on a young person's record because he happens to live in Ivy Hall instead of Ivy Apartments.

But if this much is true, then the converse also is true, and it is likewise inequitable to give a free pass to a person accused of a violent offense carrying potential felony charges just because the offender was "lucky" enough to attack someone on campus.

Campus disciplinary bodies operate almost entirely in secret, thanks to the Family Educational Rights and Privacy Act ("FERPA"), the federal confidentiality law that protects against disclosure of students' educational records. The U.S. Department of Education classifies disciplinary records as "educational," so concerned members of the public often are left in the dark when a potentially serious crime is processed as a violation of campus disciplinary rules.

FERPA often means that otherwise-open records at a public institution cannot be released to the media. But the FERPA barrier is not absolute. Congress has expressly provided that a student disciplinary board's final ruling punishing a student for a sex crime or a crime of violence is not a confidential "educational record." Therefore, if the information would otherwise be covered by the state's open-records act, FERPA is no excuse for withholding it.

In a newly released ruling, Maryland Attorney General Douglas Gansler spells out clearly that a school disciplinary body cannot hide behind FERPA to refuse to release the finding that a violent or sexual offense occurred on campus.

"[I]f the University finds that its rules or policies were violated in a matter involving ... a forcible sexual offense, incest, or statutory rape, the final results of the disciplinary proceeding -- including the identity of the accused student -- may be disclosed without violating FERPA," Gansler said in a March 3 letter to State Del. William A. Bronrott, who requested the ruling on behalf of student journalists.

The ruling was prompted by some crackerjack investigative journalism by student broadcasters at the University of Maryland, who pressed their school for disclosure of the outcome of sexual-assault cases and were met with a blanket FERPA-based refusal.

Victims'-rights advocates have begun vocally questioning colleges' use of non-lawyer disciplinary panels to handle sexual assault cases. The scrutiny intensified after a series of reports by Kristen Lombardi of the Center for Public Integrity, suggesting that some victims felt pressured to refer their cases to secretive campus judicial boards "for their own good," learning only belatedly that the punishment for rape might be as little as a one-semester suspension. (Lombardi discusses her findings in a December 2009 SPLC podcast available here.)

Critics will say that disciplinary proceedings should be secretive because the accused parties are not afforded the same safeguards as in a court of law. The burden of proof to find a person "guilty" of an offense is less, the rules of admissible evidence are relaxed, and there is rarely an opportunity to subpoena documents or uncooperative witnesses. Therefore, the secrecy argument goes, a student "convicted" by a campus hearing panel should not have to bear the lifelong stigma of being a criminal.

The response is not to make the disciplinary process more secretive, but to make it more fair. If the process is so flawed and its results are so unreliable that they are unfit for public consumption, then that should be telling us something. Secrecy may conceal a cancer, but it will not cure one.

Tagged: campus crime, FERPA, FOI