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Oklahoma State administrators defend handling of sexual assault investigation
Say FERPA prohibited administrators from contacting police with allegations
December 11, 2012

OKLAHOMA — Administrators at Oklahoma State University defended their decision to not notify police of allegations of multiple sexual assaults, telling the student newspaper this week that the school was prohibited from doing so by a federal student privacy law.

There are now believed to be as many as three dozen victims, said Stillwater police Capt. Randy Dickerson, whose office began investigating last Friday only after he learned of the allegations from the student paper, The Daily O’Collegian.

The O’Colly received an anonymous email last Thursday accusing a former member of the school’s FarmHouse fraternity of drugging and sexually assaulting members of the fraternity. Managing Editor Samantha Vicent said that when she contacted Dickerson initially, he didn’t know anything about the case.

The email to The O’Colly, and Dickerson’s subsequent phone call to inquire with the university’s Student Conduct office, ultimately made public a weeks-long investigation that had been kept secret through the university’s internal disciplinary process.

Even after the university’s investigation was complete, and a Student Conduct committee found 22-year-old Nathan Cochran liable in four instances of sexual misconduct, university administrators insisted that FERPA, the Family Educational Rights and Privacy Act, did not allow them to disclose the outcome of the judicial hearing.

Cochran’s name and punishment — a three-year suspension, starting this Friday — became public Tuesday, when the university said the window for an appeal by either Cochran or his accusers had passed.

Vicent, who has been reporting on the story for The O’Colly, said she and other students are finding it difficult to justify the outcome as well as the lack of notification to police or students as the university was investigating.

“He could come back after these kids graduate and then potentially do this again,” Vicent said. “Something is severely wrong with that.

“Even if they’re not legally obligated (to notify police), it’s a moral obligation,” she said. “It’s common sense.”

Legally, the university’s position is incorrect, said S. Daniel Carter, director of the 32 National Campus Safety Index and an expert on campus safety.

There is nothing in FERPA that says you can’t call the police, Carter said. Federal regulations specifically clarify that “nothing in the act prohibits an educational agency or institution from contacting its law enforcement unit.”

FERPA also allows schools to release information about a student if there is an “articulable and significant threat to the health or safety of a student or other individuals.” The Department of Education re-emphasized this point in a 2011 memo to schools explaining the flexibility administrators have in these types of situations.

In addition, the university may have erred in failing to issue a timely notification as obligated by the Jeanne Clery Act, which requires all colleges that accept federal education funding to disclose crimes on campus.

Named after a Lehigh University freshman who was raped and murdered, the 1990 law mandates schools keep a daily crime log, release an annual report detailing crime statistics and issue timely warnings of dangerous situations affecting the student body.

OSU never issued a Clery alert. Vicent said that when she asked administrators about the school’s lack of notification, either to police or students, she was told one would have been “an invasion of the victim’s privacy.”

Gary Shutt, the university’s director of communications, said that when the allegations were first brought to the Student Conduct office, administrators weighed the threat and determined there wasn’t any additional risk because Cochran knew the five victims.

“It’s easy for everyone who doesn’t have all the information (to say) they should have done this, this and this,” Shutt said. “It was determined it was not necessary to notify the broader community.”

In the student outcome decision released Tuesday, school officials said they “proceeded swiftly with the student conduct process” as soon as OSU learned of the allegations. Throughout the process, administrators said they repeatedly encouraged students to report the crimes to police themselves.

The university conducted the first of five interviews with victims on Nov. 12 and held a hearing on Nov. 30. OSU’s Student Conduct committee is made up of students, faculty and staff, according to its website. Each hearing is heard by a panel of one representative from each group.

Cochran’s hearing was what the school calls a “level three hearing,” held in instances where suspension or expulsion is a potential outcome. Both sides are allowed to present witnesses and evidence before taking questions from the panel and the other party.

All six students were notified of the committee’s decision Dec. 3 and had until 5 p.m. Tuesday to appeal. In appeals, an appeals panel composed of representatives from the Student Conduct committee review the case and determine whether to affirm, modify or dismiss. The school’s vice president for student affairs reviews and must sign off on cases where the appeals panel modifies the outcome or sanction.

O’Colly adviser Barbara Allen said many people have been surprised to learn the university was handling cases involving criminal complaints.

“I think people have the misconception that student conduct board is for dealing for things like academic dishonesty, not sexual predation,” Allen said. “I think most of the world is under the impression that’s what student conduct is for.”

Since learning of the allegations, Stillwater police have found five or six students who intend to formally report the assault and initiate criminal proceedings. Based on interviews with other witnesses who have come forward, Dickerson said he believes there could be as many as three dozen victims.

Stillwater and OSU police are now investigating the case jointly. Vicent said she’s been told by police their investigation was likely hampered or delayed by the university’s delay in notifying law enforcement.

“We’re just trying to get as many victims to come forward,” Dickerson said. “We’d like to see this case fully investigated and prosecuted.”

By Sara Gregory, SPLC staff writer. Bailey McGowan contributed reporting. Contact Gregory by email or at (703) 807-1904, ext. 125.

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© 2012 Student Press Law Center

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