A student who was the University of Michigan’s starting kicker for the past three seasons was expelled in December for sexual misconduct, The Michigan Daily reported this week. The expulsion stems from an incident reported in 2009.
An unknown source provided the Michigan student newspaper with official documents detailing kicker Brendan Gibbons’ punishment. In an article Tuesday, the paper noted it could not explain why sanctions “were not decided in this matter until recently."
The university has repeatedly cited FERPA, the Family Educational Rights and Privacy Act, as the reason why it cannot discuss the sanctions. A spokesman told the paper that administrators discussed "the letter of the law, the spirit of the law and long-standing University policies” and came to the conclusion it could not comment except to say that the case was handled according to university policies.
Source: The Michigan Daily, Former kicker Brendan Gibbons permanently separated from University for sexual misconduct (Jan. 28, 2014) and Citing FERPA and policy, University declines to release details in Gibbons case (Jan. 29, 2014).
Former Attorney Advocate Adam Goldstein: Let’s put aside for the moment the big issue–that Michigan appears to have learned about an allegation of sexual assault against a football player in 2009, but waited until the very end of the player’s career to adjudicate it.
(I’d say I’d leave it to the Department of Education to decide if they feel that’s acceptable, but let’s face it, the DoE never does any damn thing unless there’s a mob with torches and pitchforks already calling for action. The idea that it’s possible to retire from the Department of Education blows my mind, since everyone working for it is basically on a permanent vacation. Forty years of FERPA with zero enforcement actions–what do you do in retirement, go to a golf course and play zero holes of golf?)
But as I said, let’s put that aside and talk about FERPA, which exempts final outcomes of disciplinary proceedings for sex offenses, but doesn’t compel disclosure. That disclosure would ordinarily be compelled by state law; here, the University is essentially saying that the personal privacy exemption under state law prevents them from disclosing any information about the discipline.
This explanation is disgusting.
Michigan law exempts the disclosure of documents that would constitute a “clearly unwarranted invasion of personal privacy” (emphasis added). It’s not enough that the information in question would be considered private; there’s a balancing test of the public’s legitimate interest in knowing the information against the needs of the individual.
In order for the University of Michigan to claim that it cannot release these records under state law, it has to agree with both of the following statements:
“There is a right of privacy in being found responsible of a sexual assault." Because you need to have a privacy right for the invasion of that right to be unwarranted. Of course, this is a totally baseless statement. You don’t have a right of privacy in any criminal activity. It’s like saying that a student can rob a bank on campus and the school can’t release the security footage to the cops because it’d be an invasion of privacy. But the University of Michigan must think there’s such a right, or else they’re lying about why they think this is exempt from disclosure.
"The public’s interest in knowing that someone found responsible of a sex offense is on the campus is not as important as the offender’s right to walk around and meet women who don’t know that.” Because even if there’s a privacy interest, the invasion of that interest must be unwarranted, or else the records must be disclosed. So women on campus at the University of Michigan, your university just stated that they believe your right to know who was found responsible for sexual offenses is less important than the right of offenders to meet you at a party. Because if they didn’t believe that, then the exemption wouldn’t apply, and the disclosure of this record would be mandatory.
So, yeah. Disgusting.
The NCAA should share some of the blame here, too (along with the University and the Department of Education, for being basically the Department of Rest and Relaxation when it comes to sexual assault on campus). The NCAA forces players to waive FERPA rights to determine eligibility.
That means Michigan either lied to the NCAA about this guy’s activity or the NCAA never asked about his activity. In which case, I’m baffled. The NCAA is interested in Ohio State players getting free tattoos and Penn State’s showers, but has no interest whatsoever in how many people responsible for sex offenses are on the field even though they shouldn’t be in school at all?
Anyway, as to the validity of the explanation, I’m going to go out on a limb and say that there’s no privacy right in being responsible for sex offenses.
(And if you think there ought to be a privacy right because the university disciplinary processes are basically kangaroo courts, well, you’re right about the processes, but wrong about the remedy. Letting people be railroaded in secret doesn’t help. That’s why public trials are a right in the Constitution.)
Oh, and hey, let me toss out the argument for the other side in advance: “This is an anomaly.” Yeah, aren’t they all. Aren’t they all.
We rate this: not protected by FERPA at all