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Newspaper loses bid to access student disciplinary records
But newspaper can access 'final results' of hearings, Vermont Supreme Court rules
September 12, 2003

VERMONT — A St. Johnsbury newspaper cannot access disciplinary records of students in the Vermont state college system, but it can learn the "final results" of some campus crimes, the Vermont Supreme Court ruled last week.In what appeared to end a three-year-long battle between the Caledonian-Record and the Vermont state college system, the court ruled that Vermont state law prohibits the release of students' educational records, which the court said include disciplinary records. "Although the [Vermont] Public Records Act does not define 'student record,' the language of the exception is broad and unqualified," wrote Associate Justice Marilyn Skoglund for the court's majority. The Caledonian-Record had requested records, including minutes, from student disciplinary hearings at Lyndon State College. The newspaper argued that it should have access to reports, which involved allegations of criminal behavior by students so the public could gain awareness of college safety issues, such as illegal drug abuse, binge drinking, hazing, theft and other crimes. The court disagreed, saying that the disclosure of the disciplinary records would violate students' right to privacy under the state open-records law and the Family Educational Rights and Privacy Act, a federal law that regulates the disclosure of student records. The court did rule, however, that the "final results" of student discipline proceedings must be made public if the cases involved a student being found responsible for a violent crime or a nonforcible sex offense because those records are excepted from the coverage of FERPA. The decision did have some other silver linings for the newspaper. The court upheld the Caledonian-Record's request to obtain campus crime statistics and police logs under the Clery Act, a federal law mandating the release of university crime statistics but not the names of students involved. S. Daniel Carter, senior vice president of Security on Campus, a Pennsylvania-based organization dedicated to college campus safety, was pleased with the concessions the court made for public access. "Student and professional newspapers will now be better equipped to do their jobs ... and most importantly, students will be safer knowing if their peers are potential threats to their safety," Carter said.He added, however, that the only way to ensure campus safety is to make all student records involving criminal misbehavior available. The problem is, Carter said, universities are reluctant to release such campus crime records because doing so would publicize a security risk and injure schools' reputations. The Vermont state college system saw the outcome as a clear victory for educational privacy. "What is paramount to us is [that] we can protect student privacy," said Judy Beaupre, dean of institutional advancement at Lyndon State College. "As a former journalist, I advocate free speech, but we have a very strong security system and do not think this will jeopardize student safety in the least." Vermont State Colleges attorney Joseph P. McConnell was also pleased, saying that optimal conditions for student safety require a balance between disclosure and student privacy. "The Caledonian-Record just thought the balance was way off somewhere else," McConnell said.Despite The Caledonian-Record's failure to gain access to the records it wanted, Managing Editor Ellie Dixon said the newspaper made some progress for open records in Vermont. "We are moving forward slowly," she said. "Before the trial, the police said they did not have permission to release their campus crime log, but now they do. It's a small victory." Dixon said the newspaper's attorney Phillip White, who was unavailable for comment, has said he may try to reopen sections of the case involving the disciplinary hearings and open-meetings law. "We do this for the public," Dixon said. "If there is more worth fighting for, we will."The court's comments on FERPA could have an effect on journalists' ability to access student records under the federal law. The court noted in its decision that it is not clear whether FERPA actually prohibits the disclosure of student disciplinary records or simply imposes financial penalties for schools who decide to open their student disciplinary records to the public."We note, however, that state and federal courts are sharply divided on this issue," the court wrote.

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