ARLINGTON, Va. — After a March 20 federal court ruling, two Ohiouniversities may now be prohibited from releasing certain campus disciplinaryreports that identify individual students. But the battle for access tocampus crime information maintained exclusively in campus disciplinaryrecords is far from over.
The ruling in U.S. v. Miami University,No. C-2-98-0097 (S.D.Ohio, March 20, 2000) granted the U.S. Department of Education’s requestfor a permanent injunction prohibiting Miami University and Ohio StateUniversity from releasing student disciplinary records covered by the FamilyEducational Rights and Privacy Act (FERPA), also known as the Buckley Amendment.
The case arose after the Ohio Supreme Court ruled in July 1997 thatthe student newspaper at Miami University was entitled to student disciplinaryrecords under the state open records law and that FERPA did not prohibitthe release of those records. After that decision, the Washington, D.C.,-basedChronicleof Higher Educationrequested access to disciplinary records from Miamiand Ohio State as part of its ongoing coverage of campus crime. With thesupport of the institutions, the Department of Education sued to preventthe schools from having to comply with the Chronicle’srequest. TheChronicleintervenedto assert the public’s right of access to information about criminal behaviormaintained in internal campus disciplinary proceedings.
The court’s ruling, which is in direct conflict with other court rulingsfrom around the country, includes several important holdings:
1) Despite the fact that FERPA has no explicit provision allowing theDepartment of Education to sue schools to force compliance, the court readsuch a provision into the law. Campus crime activists find it troublingthat the Department has refused to punish any school for failing to releasecrime information as required by federal law, yet it felt justified intaking the extraordinary step of suing to prevent the release of informationabout campus crime in this case.
2) Other federal and state courts have said that FERPA does not prohibitthe release of any student records, it only creates potential consequences(financial penalties) for schools that have a policy and practice of releasingthose records. This court disagreed. It said that FERPA “imposes a directobligation on universities not to disclose” the disciplinary records atissue. This holding is perhaps one of the most troubling in the entiredecision because it basically says that the federal government can prohibitthe release of the records of a state government agency even when the statelegislature and state courts have determined those records should be opento the public under a state open records law. Moreover, it said that sucha federal limitation does not offend the First Amendment.
3) Also contrary to other court rulings, this court held that disciplinaryrecords should be considered education records under FERPA and do not fallwithin one of that federal statute’s exemptions. The court gave great deferenceto the Department of Education’s interpretation of the law, despite thefact that other courts have routinely rejected the Department’s interpretation.On this issue, at least, the court recognized that its interpretation wasquestionable. It noted that “[o]ne could construe the language [of FERPAallowing disclosure of records of a campus law enforcement unit] to includedisciplinary records of the type at issue in this case.” But it deferredto the Department of Education’s interpretation of the law.
4) The most laughable part of the court’s ruling comes near the end.In response to the Chronicle’sargument regarding the risk to studentsafety posed by a school’s refusal to release disciplinary records detailingcriminal behavior, the court said that students can get all of the crimeinformation they need from campus crime statistics. The statistics schoolsare required to release annually under federal law “are adequate to informstudents, prospective students and parents about the safety of variouscollege campuses.” No mention was made of the fact that those crime statisticsare 10 months old by the time students receive them or that most studenteditors (and Congress’ ownGeneral Accounting Office) tell us that schools routinely under-reportstatistics out of sloppy record-keeping if not ill intent. One wondersif the judge would be willing to make this naive assertion to a young womanwho becomes a victim of sexual assault perpetrated by a student athletefound guilty of a similar offense two months earlier in a secret campusdisciplinary proceeding.
The Chroniclehas not yet indicated if it intends to appeal thecourt’s decision or pursue some other legal remedy for access to the disciplinaryrecords it seeks. Unless or until it does, this decision will allow thesetwo Ohio institutions to hide serious criminal incidents from unsuspectingstudents by channeling them into a secretive campus disciplinary process.
In the meantime, the Student Press Law Center offers a couple of caveats:
First, the ruling only directly affects the two schools involved inthis case — Miami University and Ohio State. Schools in other parts ofOhio as well as those elsewhere in the country are not prohibited fromreleasing any disciplinary records by this ruling. (Other schools in thesouthern half of Ohio could expect to be subject to the same interpretationof FERPA that this court offered, but they are not a party to this courtorder prohibiting the release of disciplinary records.) It remains to beseen if the U.S. Department of Education will be willing to file suitssimilar to this one in court’s across the nation.
Second, this court admitted that the release of some disciplinary recordswas required of these institutions. The outcomes of disciplinary proceedingswhere a student has been found guilty of behavior that would constitutea crime of violence or non-forcible sex offense may be released under FERPA.And according to the Ohio Supreme Court’s 1997 decision, public collegesand universities are compelled by the state open records law to do so.Although courts in many other states have not yet had occasion to ruleon whether their state laws require the release of this information, itis fair to say that most public schools in the country will be obligatedto provide the information as well. (And, of course, disciplinary recordsthat do not contain personally identifiable information about individualstudents were never covered by FERPA in the first place.)
And finally, no matter what this court or any other says, those demandingfull disclosure of campus crime information are on the moral high ground.Talk is already afoot of a legislative response to this decision, and membersof Congress would certainly profit from hearing the experience of the campuspress in getting access to crime information. Most college journalistsagree they have an obligation to provide their readers and viewers withthe information that allows them to live safe and secure lives on campus.This case may be a setback in that effort, but it is far from being thelast word on the public’s right of access to information about campus crime.
The text of the court’s decision can be found online at: http://www.campussafety.org/publicpolicy/courts/muoh/03202000.html.
For additional information contact:
Mark Goodman, Executive DirectorStudent Press Law Center(703) 807-1904