CPI investigation’s findings heighten urgency of FERPA reform

Victims of sexual assault on campus often feel pressured to divert their cases away from the criminal justice system and into the secretive world of campus disciplinary bodies, frequently producing unsatisfying outcomes, according to a newly published study by the Center for Public Integrity, a nonprofit investigative journalism consortium.

The public often is surprised to learn that campus disciplinary boards — made up of non-lawyer school employees and rarely bound by court-like rules of evidence or burdens of proof — are adjudicating cases that would be felonies if handled by off-campus authorities. After a nine-month investigation, reporters with the CPI concluded that “a thick blanket of secrecy still envelops cases involving allegations of sexual assault on campus,” often to the detriment of victims, who in several instances have even been ordered not to talk about their own cases under threat of disciplinary sanctions.

The CPI traced much of the secrecy to a familiar culprit, the Family Educational Rights and Privacy Act (FERPA), sometimes referred to as the Buckley Amendment. FERPA restricts the release of students’ “educational records” by school officials, but the law expressly exempts law enforcement records created by campus police or security departments. Critics have charged that colleges — knowing that publicly accessible police records will call attention to hazards that are bad for marketing — intentionally steer complainants to the disciplinary system, where the obligation to disclose is much less clear.

Disturbingly, the CPI found that — even though FERPA explicitly permits disclosure of information about findings of guilt involving violent offenses or sex offenses — that exception was neither widely understood nor followed. One college official told CPI that his school never disclosed such outcomes “and I don’t know anyone who does, frankly.”

Student reporters with the SPLC’s Report magazine, working in conjunction with student volunteers from three leading college journalism programs, conducted their own public-records audit of campus disciplinary bodies last spring. Their unscientific sampling of more than 100 colleges nationwide found spotty compliance with open-records laws. A few colleges hid behind FERPA to deny access even to anonymous statistical data with no information traceable to any identifiable student.

The CPI promises more installments in its campus sexual assault investigation. The Center’s work should reinforce the urgency for Congress and the U.S. Department of Education to rectify the excessive breadth of FERPA, introducing a much-needed consideration of public accountability and transparency into what has become a secrecy-for-secrecy’s-sake black hole of information.