Less than 20 percent of colleges and universities surveyed by The Student Press Law Center Report this summer would provide information about students who commit serious crimes on campus that are dealt with in disciplinary proceedings.
Although federal law permits the disclosure of records of the outcome of disciplinary proceedings when a student is found responsible for behavior that would constitute a violent crimes or a nonforcible sex offense, many college say they would rather maintain the students’ confidentiality. Others said they were either compelled or restricted from releasing the records under state law, but many of those schools were in agreement over their concern for students’ privacy.
The unscientific survey raises the question as to whether the Family Educational Rights and Privacy Act is effective in its current state of voluntary release of that crime info. FERPA states a school can lose its federal funding if it has a policy or practice of releasing students’ education records without receiving consent. Under a 1998 amendment, schools are permitted to release the outcome of disciplinary proceedings where a student is found responsible for behavior that would constitute a crime of violence or nonforcible sex offense. Schools, however, are not required to release this information under the amendment. Access advocates argue that state open-records laws should require that release in some states.
The SPLC wrote to a public and private university in each of the 50 states and the District of Columbia to request a copy of those specific records for offenses that took place between August 15 and December 31, 2002. Under the Department of Education definition, a crime of violence can include arson, assault, burglary, murder, destruction of property, kidnapping and robbery. A nonforcible sex offense includes statutory rape and incest.
The SPLC survey asked the schools to disclose all information allowed by FERPA, including the name of the alleged perpetrator, the violation committed and the resulting sanctions. A university also may disclose the names of the victim and any witnesses involved if they give consent.
The letters were sent out between June 30 and July 7, 2003. Replies received by August 8 are included in this report.
Of the 102 schools surveyed, 59 sent some form of response, 46 public and 13 private. Of the 59, 17 schools provided at least some of the information requested, while 26 provided none of the information. Of the 16 schools remaining, eight claimed no such offenses had occurred, eight claimed they needed more time to respond. No private schools released any of the requested information.
According to S. Daniel Carter, senior vice president of Security on Campus, a Pennsylvania-based victim advocacy organization, the survey results affirm that the 1998 amendment has not compelled schools to disclose information about campus crime.
“Very simply, because FERPA does leave it up to the discretion of most schools whether to release or not, their discretion is going to be on the side of not releasing the information,” he said.
Carter said he would expect disciplinary proceeding records to be released by schools in states where the courts have said such records are open under state law, including Ohio, Missouri, North Carolina and Georgia. Private schools, on the other hand, have no obligation to disclose this information and are significantly less likely to release the records, he said.
The University of Texas at Austin, which released the requested information, was compelled by Texas law to provide access to the requested disciplinary proceeding records, according to Assistant Dean of Students John Dalton.
“Basically, when we get an open-records request, we try to be as compliant as the law will allow us to be,” Dalton said.
Some schools that did not release disciplinary proceeding records cited school policy or state law as preventing disclosure. Other schools declined to disclose the records because they are not compelled under FERPA.
The University of Puget Sound explained that the student handbook outlines that “judicial proceedings at the University are kept confidential, without the express written consent of the students involved.”
The University of Michigan said that releasing the documents would constitute an “unwarranted invasion of an individual’s privacy” and were thus exempt under the Michigan Freedom of Information Act. However, courts have consistently said that releasing information involving allegations of criminal misbehavior does not constitute an unwarranted invasion of privacy.
The University of Vermont, Indiana University and University of Hawaii claimed that they could not answer the survey because the provisions of their student code of conduct did not correspond with the federal definitions of crime of violence or nonforcible sex offense.
According to Carter, if a state law requires the release of these disciplinary proceeding records, then a school has an obligation to determine whether the facts of each case constitute an allegation of a crime of violence or nonforcible sex offense.
“The circumstances of the alleged act rather than the nature of the conduct code violation are what govern here,” Carter said
The University of Georgia released the requested information but explained that the school code of conduct also did not specify crime of violence or nonforcible sex offense. Instead, the response listed judicial cases for disorderly conduct, theft, damage and disregard for property and fire safety and sanitation.
Eight schools sent notice that they were processing the SPLC request, but a final response had not been received by press time.
The University of Maine claimed that state law allows for the release of public records only in person. The University of Tennessee and the University of Arkansas cited state laws, which only permit release of educational records to citizens of their respective states.
Eight schools, including the University of Kansas, reported that there had been no instances of students disciplined for behavior that would constitute a crime of violence or nonforcible sex offense during the dates in question.
Sandy Patchen, executive assistant to the provost at the University of Kansas, said that she did not know whether the school would have released the information had such crimes occurred on campus.
“I would have to go to the general counsel’s office to find out exactly what kind of information could be released,” Patchen said.
Several school administrators did not seem to have a firm understanding of FERPA.
At the State University of New York at Stony Brook, Records Access Officer Karol Kain Gray claimed that disciplinary records could be kept confidential under FERPA.
University of Louisiana at Lafayette provided all requested information because Dean of Students Edward Pratt said he had thought FERPA required the information to be released.
“We received counsel on this request,” Pratt said, “It was my understanding … that I was supposed to release it.”
After being informed that FERPA leaves disclosure up to the school’s discretion, Pratt said he would reevaluate his response in the future.
Those who believe information about violent crimes should be released say that keeping students informed about school disciplinary proceedings will help to deter campus crime.
“Students need to know that violent crime on campus will not be tolerated,” Carter said. “If they don’t know that disciplinary proceedings are being held, they don’t know whether or not the school will tolerate that kind of activity.”
Some of the school administrators interviewed disagreed with the crime deterrence assessment.
“I think that young people make mistakes,” Pratt said. “They are made to feel like some horrible criminal because their name is in the campus paper or the town paper. It was a mistake, and in most of these cases, it will never be repeated.”
The University of Rhode Island was one of the schools that did not make available the requested records, although according to Dean of Students Fran Cohen, the school used to release the information about 20 years ago. Then, the university printed summaries of all judicial action without names in the student newspaper, The Good 5 Cent Cigar.
“At that point, we evaluated the policy … and did not find it had any deterrent effect. We found that people were paying attention, if at all, in a gossipy way rather than to see what happened to the individual,” Cohen said. “When students came in with a violation that was similar to the one that had been published in the campus newspaper, it just wasn’t in their minds in a deterrent way.”
According to Carolyn Carlson, the vice chair of the Freedom of Information Subcommittee on Campus Crime of the Society of Professional Journalists, disclosure is important for both the victim and the perpetrator because it allows student journalists to evaluate the disciplinary process.
“Students should demand release of this information because it helps them understand how their fellow students are being treated and to make sure that they themselves are being treated fairly by the system,” Carlson said.
Carter said that open records allow the campus community to be aware if there is a potential danger to safety on campus.
“Without disclosure, it is entirely possible that someone who a school has determined has committed a violent act is allowed to remain on campus … with other students who are completely unaware,” he said.
Both university administrators and advocates for disclosure struggle with the issue of how and to what extent student privacy ought to be protected. Administrators at some schools claim that disciplinary proceeding records are educational documents and should be kept confidential under FERPA.
Although the University of Texas at Austin and the University of Georgia both released disciplinary proceeding documents, administrators at the schools said that if they were not compelled to disclose under state law, they would choose to keep the records confidential.
Dalton, the UT Austin administrator, said that he believes in the importance of protecting students’ records, including student judicial sanctions.
“I definitely think the public, the university public has a right to know when a crime of violence occurs,” Dalton said. “I don’t necessarily think the public has a right to know the identity of that particular individual [who committed the crime].”
Georgetown University does not publicly disclose information about specific student disciplinary proceedings. According to Judy Johnson, director of student conduct, the school’s policy was carefully and thoughtfully drafted to reflect the university’s deep respect for student privacy. Confidential proceedings best serve the school’s educational mission, Johnson said. (See DOE, page 20.)
Carter said while there may be an educational component to campus judicial proceedings, a school’s primary obligation should be to the safety of students.
“I think that when it comes to the issue of violence on campus, student safety outweighs student privacy, just as it does in our society at large,” Carter said.
Carter said schools tend not to release information because “they would prefer not to be seen as places where that kind of violent crime occurs so that they continue to remain competitive and … they don’t have to devote as many resources to security and other violence prevention programs.”
Carlson said student privacy ought to be protected but a student who commits a violent crime has waived the right to privacy in the disciplinary proceedings for that crime.
“Why should a student by virtue of having the money and the smarts to go to school be allowed to commit crimes with impunity just because they happen to be students,” Carlson said. “That discriminates against those who aren’t students and commit similar offenses.”
Advocates for disclosure hope to amend FERPA so that schools that receive federal funding are required to disclose information about violent crimes and nonforcible sex offenses. In the meantime, they say student journalists have a responsibility to their campus communities to report on campus crime.
“I wish that student journalists would be more aggressive in asking for this information and not just taking no for a blanket answer,” Carlson said.
Administrators at the University of Louisiana at Lafayette, the University of Michigan, the University of Texas at Austin and Mississippi College reported never having received a request for this type of crime information, even from student journalists on campus.
“Unless the student media makes an effort to keep the student body informed about this deprivation of their rights, then the students don’t know about it and they don’t demand changes,” Carlson said.n