Southeast Missouri State University student publication

FERPA abuse? I think so.

Thursday, February 15, 2018

In a forum earlier this week, assistant dean of students Randy Carter said the Office of Student Conduct cannot release information of students found in violation of sexual assault due to the Federal Education Rights and Privacy Act of 1974.

As it turns out — that’s not quite true.

FERPA was enacted as a federal law in 1974, and requires public institutions to enforce policies that safeguard student information by making their education records confidential.

In the act, education records are defined as “those records, files, documents and other materials which contains information directly related to a student; and are maintained by an educational agency or institution or by a person acting for such agency or institution.”

Moreover, in 1992 FERPA was amended to remove the protection of records kept by campus police or security. Because of this, it is wrong for a police or public safety department to cite FERPA when refusing to release a student arrest record, incident report or the identity of persons named in those documents.

The Maryland Court of Appeals ruled in 1998: “FERPA was not intended to preclude the release of any record simply because the record contained the name of a student. The federal statute was obviously intended to keep private those aspects of a student’s education life that relate to academic matters or status of a student.”

So when a student attending the forum asked Carter whether the student conduct office can inform specific people outside of the conduct process that a student has been found in violation of sexual assault, and he said “No” — my question was: “Why not?”

The student conduct process is a separate adjudication process from any law enforcement agency, and is strictly run through the university. Because of this, some people argue those records are protected under FERPA.

They’re wrong, at least when it comes to serious sexual misconduct.

After the 1992 amendments regarding law-enforcement records, state courts in Ohio and Georgia ruled student disciplinary infractions were outside the parameters of FERPA because they are not “educational” in nature. The North Carolina Supreme Court, however, disagreed, and Congress stepped in to settle the matter legislatively.

And once again, FERPA was amended.

In 1998 Congress amended FERPA to exclude specific disciplinary violations from the “educational records” designation. If a student was found in violation to an act considered a crime in a court of law, the confidentiality provision no longer would apply. In the clause, Congress specifically cited “sex crimes” as being under that scope.

Immediately following the amendment, the U.S. Department of Education changed its regulations to state the public is entitled to information upon “final result" through a disciplinary process. The regulations included forcible and non-forcible sex offenses.

According to the Department of Education:

“Final results means a decision or determination, made by an honor court or council, committee, commission, or other entity authorized to resolve disciplinary matters within the institution. The disclosure of final results must include only the name of the student, the violation committed, and any sanction imposed by the institution against the student.”

This means individuals found in violation of sexual misconduct through the student conduct process can be identified by the university, and that Carter’s explanations for not releasing the information are backed by an outdated version of FERPA.

Even in the midst of the disciplinary records debate, there is for sure one set of records the university can release through the Department of Public Safety involving individuals accused of sexual misconduct.

Standard procedure for most sexual-assault cases include “notice-against-trespass” or “no-contact” orders. These specific orders are created to protect the victim from the accused assailant, and to limit the accused individual’s campus access. In many cases for “notice-against-trespass” orders, the individual is banned from campus completely. These orders are enforced by the Department of Public Safety and the Office of Student Conduct.

Since the Department of Public Safety is involved, they can release the names of individuals regardless of the academic interpretation of FERPA.

Not only can they do it, but several universities already have without any adverse FERPA consequences. Virginia Tech and the University of Northern Colorado both publish lists of people barred from campus online with photos of the individuals whenever possible.

During investigations within the Arrow’s Accounting for Assault special report last spring, former director of the Student Press Law Center Frank LoMonte advised: “If a no-trespass order is issued by or enforced by your campus police or security, then it is a law-enforcement record, which means it is exempt from student confidentiality.”

And not to be audacious, but what’s the use of a no-trespass order if nobody knows about it?

So, the question is no longer if such identifications CAN be made — it’s SHOULD they?

Should students on campus be aware of individuals that are banned? Should they be aware of a potential assailant sitting next to them in their classrooms? Should student organizations get the notification that one of their members who possibly sexually assaulted someone? And — to consider a different perspective — should a student who may have just made a mistake have to be publicly shamed by having his conduct files released?

I’ll leave that one up to the readers.