Two years ago, Congress made it harder for colleges and universities tohide violent crime behind the ivy-covered walls of their campus courtsby passing legislation specifically allowing schools to release the disciplinaryrecords of students found responsible for violent crimes. But the opennessthat many anticipated would follow the change in the law has not resulted.Student journalists who have tried to access these records have beenstymied by uncooperative administrators, state laws limiting the records’availability and a lack of knowledge about what the law requires and whatto do if they are denied the records.
Behind Closed DoorsSince the 1960s, administrators have authorized campus disciplinaryboards to punish students charged with violating school rules such as cheatingor plagiarism. But as criminal activity has increased on college and universitycampuses, these courts have begun to hear more and more cases relatingto criminal behavior, including sexual assault and physical abuse, as well.
But unlike criminal trials, these hearings are routinely conducted behindclosed doors.
This school-sanctioned secrecy from the public and the media has becomea source of contention for many campus reporters who believe their schoolsare using the disciplinary process to prevent public access to crime information.
Erin Tate, student journalist and vice president of the Virginia Techstudent chapter of the Society of Professional Journalists, said denyingaccess to these records endangers the very students the school should betrying to protect.
“More often than not, schools attempt to justify hiding informationby saying they are protecting a student’s privacy, but by protecting thestudent who committed the crime, the school is endangering the rest ofthe student body,” Tate said.
College administrators say protecting both the accused and the victimsis essential to the mission of campus courts. They argue that these proceedingsare an arm of the educational institution, not the law, and should be treatedas learning opportunities, not criminal trials.
Furthermore, the penalties involved in campus court proceedings aremuch less serious than those in criminal courts. The maximum penalty acampus court can levy is expulsion.
Richard Olshak, president of the Association for Student Judicial Affairs,an international professional association of student judicial affairs officials,said many students who go through the disciplinary process do so on thecondition that the information they provide will remain confidential.
“There are a number of problems that can arise if there is too muchaccess,” Olshak said. “I have had many students come through the disciplinaryprocess because they knew it would not come before public scrutiny. Everythingwould be kept confidential on both sides of the fence.”
“We are interested in preserving the integrity of the academic community,and we are not interested in an open debate in the public,” Olshak said.”This is not a criminal proceeding. If it were, it would not look likean educational process anymore. In a worst case scenario, we will havea student who will not utilize this process anymore because everythingends up blasted in the paper or else the student just decides to transferto another school.”
Campus media, on the other hand, argue that denying public access tothese records infringes on their obligation to inform other students aboutinformation relevant to their safety on campus.
“Students have a right to know how their school protects them, and whetheror not the person sitting next to them committed violent acts,” said DanielCarter, vice president of Security on Campus, a nonprofit group workingto reduce campus crime.William Lawbaugh, chair of the Society of Professional Journalists’Campus Courts Task Force, said open proceedings also facilitate studenttrust in the campus judicial system and school officials.
“The Sixth Amendment guarantees you a public trial,” Lawbaugh said.”But there are three places you can still get a private trial: Cuba, the[People’s Republic of China] and some American college campuses. What inthe land of Jefferson and Monroe are we teaching our college students bysetting up star chambers and kangaroo courts? Certainly not good civics.”According to Carter, the release of campus disciplinary records ispertinent to the student body and should be readily available to collegejournalists.
“Traditionally in this country, matters affecting the public, especiallythe public’s safety, have not been considered private matters, and whena college’s campus court deals with violent misconduct, it is no different,”Carter said. “Just because someone is a college student, that does notgive them a special right to have violence handled privately.”
Access DeniedFor years, colleges and universities claimed they were prohibited fromreleasing students’ disciplinary records because of the Family EducationalRights and Privacy Act, a federal law that creates potential penaltiesfor institutions receiving federal funds that disclose students’ educationrecords without their consent.
But as the number of violent acts adjudicated by campus courts increased,organizations like Security on Campus began pressuring Congress to changethe law to make clear that disciplinary records involving criminal behaviorwere exempt from the limitations of FERPA.
In 1998, Congress amended FERPA to allow, but not require, schools torelease the outcomes of disciplinary proceedings in which the student involvedhas been found responsible for a violent crime or nonforcible sex offenseas well as the name of that student and the disciplinary action taken bythe university.
Many public colleges and universities must now release this informationunder their state open-records laws. Most private schools are not subjectto such requirements, although they can release the information if theychoose.
But Carter said ignorance of the law and ambiguity over the law’s termshave prevented many journalists from getting access to these records.
“Based on the calls we take, I would have to say I think that many studentreporters are ignorant of the provisions in their state public-recordslaws,” Carter said.
According to results from a nonscientific survey of college journalistsconducted by the Student Press Law Center at the National College MediaConvention in Washington, D.C., held Nov. 8-10, 52.8 percent, or more thanhalf of those surveyed, said they had not tried to access records statingthe outcomes of disciplinary or campus court proceedings.
Forty-four percent of the students who attempted to access informationfrom either disciplinary files or campus court proceedings said they werenot successful.
Carter said this is because university officials will go to great lengthsto protect information that they feel will harm their school’s reputation.
“Schools often prefer to handle matters in house so as to avoid badpublicity and outside interference in what they see to be an educationalmatter, even when it involves violent misconduct,” Carter said.
Mary Beth Murtha, managing editor of the BG News, the studentnewspaper at Bowling Green State University, was one of the 44 percentof student journalists who tried to get copies of judicial records butfailed.
Murtha said Bowling Green administrators refused to release disciplinaryinformation about a specific student, and newspaper staffers did not knowenough to question them.
“We were simply told that under FERPA they could not tell us anythingexcept to say that they were handling it,” Murtha said. “We have not contestedthis because the information that we had on FERPA did not make it clear,and we were not getting anywhere with our sources.”
Murtha believes hiding disciplinary records from students encouragessimilar misconduct in the future and overlooks effective solutions.
“I think it would have been helpful for other students to see that thereare consequences for inappropriate behavior,” she said.
Know Your RightsCarter advises students struggling to obtain judicial records to learnmore about their rights to access these records before proceeding.
“Dealing with each situation will require a different approach,” Cartersaid. “Whether or not access to the records is achieved or not will largelydepend upon knowledge of the laws and policies involved. In some casesa request can be made under state public-records laws, although a rulingby a court or attorney general may be required before a school will bewilling to comply.”
Megan Lewis, editor of The Herald, the student newspaperat Arkansas State University, said even after offering a variety of legaldocuments to support the newspaper’s claim, administrators refused to acknowledgethe paper’s right to access disciplinary records until they were forcedto do so by the state attorney general.
“It was not until the school asked the attorney general to step in thatthey decided to take us seriously,” she said. “Even though we approachedofficials in the office of judicial affairs with a copy of [SPLC’s booklet]CoveringCampus Crime along with the state’s open-records law, I doubt theybelieved that we, as students, would follow through with any of our inquiries.”
The state attorney general issued an opinion Feb. 20 advising universityofficials that the state’s freedom of information act requires them todisclose the outcome of certain student disciplinary proceedings.
This is the first time the state has considered whether university disciplinaryrecords constitute “scholastic records,” which are exempt from disclosureunder the state law.
According to Carter, the key to working with administrators to accessthese records is persistence.
“Students have a right to know about how their school protects them,and whether or not the person sitting next to them in class has committedviolent acts,” Carter said. “They need this information so that they canknow what precautions to take to avoid victimization themselves. It alsowill serve as a deterrent-assuming the school is properly responding toviolence-to other students committing violent acts.”
The Society of Professional Journalists resolved at its 2000 conventionto urge campus and professional news media outlets to seek more informationabout campus crime, including seeking rulings from schools, state attorneysgeneral and courts on whether their state open-records laws require therelease of disciplinary records.
The Virginia Tech chapter of the Society of Professional Journalistsrecently collaborated with the student government association in orderto pressure the university to disclose the judicial records of studentsfound responsible for violent campus crimes to the public.
Tate said the task force met Feb. 21 to develop a strategy for convincingthe office of judicial affairs to revise its policy.”Within the next year we hope to propose legislation to the studentgovernment, or even better, make a change in the system, that will allowthe public to review this information,” she said.
Unfortunately, some states, including Virginia, have education-recordsexemptions to their open-records laws that allow schools to refuse to releasethis information.
Changing the LawWhen the law is not on their side, Carter suggested that student journalistsexplore other opportunities, such as lobbying their state legislators tochange the law.
Student journalists at Portland State University are considering thisstep after losing their battle with school officials for access to disciplinaryrecords.
Andrea Barnum, editor of The Portland State Vanguard, saidthe paper tried to access the results of disciplinary proceedings involvingan elected university student official accused of sexual assault.
Barnum said administrators denied the paper’s request for information,and the state attorney general affirmed in October the school’s refusal,citing state law.
Carter advises journalists to learn their rights within the law beforethey attempt to access this information.
“When denied access to campus court records, the first step is to understandthe grounds on which the denial was made,” Carter said. “Although federallaw — FERPA — now permits some records to be disclosed, it does not applyto all, and some state laws will continue to preclude access under statepublic-records laws at public institutions.”
Leading the Way: ‘We have had no complaints’The University of Dayton, a private Catholic university, decided in1999 to voluntarily disclose the disciplinary records of students who arefound responsible for violent crimes.
Although private schools are not subject to the same rules of access,Carter said that should not stop student journalists from trying to convinceschool officials of the benefits of disclosure.
“At private institutions they should be able to release everything FERPApermits but will not be required to,” Carter said. “Denial there may bebased on a policy, which should be construed as a contract with the studentswhose records are being sought, or merely that there is no legal obligationto release the records.”
William Schuerman, vice president of student development and dean ofstudents at Dayton, said the university decided to change its policy afterCongress passed the 1998 amendment to FERPA.
“We want to be as open as we can with our students and our community,particularly about things involving public safety and violations that thecommunity needs to know about,” he said. “We tried to balance protectingpeople’s privacy rights with letting students, particularly the studentpress, have access to student safety records and outcomes of judicial proceedings.”
“After two years we have had no complaints,” he said.
Schuerman, however, said he was not sure whether the university hasactually released the names of any students found responsible for violentcrimes on campus since the policy was changed. He added that he does notknow whether any violent crimes have been adjudicated by the universityduring that time period, either.
But in a recent proceeding in which a student was found responsiblefor sexual misconduct, the university refused to release the name of thestudent involved to the student newspaper. This refusal was based on advicefrom the university’s counsel, according to Schuerman.
“There was nothing to suggest that this fell under the stipulationsunder FERPA which allow us to reveal those records,” he said.
The changes to FERPA have not led most private schools to change theirpolicies, however.
Administrators at Georgetown University refused to release the campuscourt records of five students tried by a campus court in the beating ofa fellow student — even to the dead student’s family.
This secrecy sparked outrage among the university community, leadingto a call by the student government for school officials to release detailedinformation to the student’s family and more general information to thestudent body.
In response to this criticism, the vice president for student affairsasked the disciplinary review committee to examine Georgetown’s currentpolicy regarding the disclosure of disciplinary hearings and suggest changes.The committee’s findings are expected to be released in May.
As violence on college campuses shows no sign of declining, Carter saidhe believes outside pressure from state attorneys general, legislatorsand the media will eventually force schools to address these issues.
“As was the case with police reports, I believe that schools will eventuallybecome very open to student access to court records,” Carter said.
- For a more detailed explanation of the legal issues surrounding the releaseof campus crime information and steps you can take to get access to campuscrime records at your school, download the SPLC publication CoveringCampus Crime for free from the SPLC’s Web site.
- Also see the Security on Campus Web site.