A recent graduate of Pomona College in California was told by school officials that she could not share any details of the sanctions imposed on the man who sexually assaulted her twice. However, the college’s nondisclosure policy has no basis in the Family Educational Rights and Privacy Act or the Clery Act.
After Yenli Wong wrote about the college’s alleged mishandling of her case in the Huffington Post, students protested at the college’s graduation ceremony by turning their backs on the president and covering their mouths, to signify the silencing of victims like Wong, according to Slate.
Wong was under orders from the college to refrain from disclosing details of her attacker’s punishment, but she said it was “extremely light.”
Although Pomona College hasn’t cited the rationale for its policy, colleges that employ such gag orders often argue that the restrictions are necessary to maintain the privacy of student education records under FERPA.
In another example, Otterbein University at one time gave students reporting sexual assaults a judicial administrative checklist that included a nondisclosure clause. The school said the requirement was necessary to comply with FERPA, but it was dropped in 2013 after student journalists from the school’s newspaper, the Tan & Cardinal (now called Otterbein360) discovered that the nondisclosure clause violated federal law.
The U.S. Department of Education, the agency charged with enforcing FERPA, has ruled multiple times that sexual assault victims who speak about their cases do not violate FERPA, and that colleges cannot enforce gag orders on victims.
Congress amended FERPA in the 1990 Student Right-to-Know Act specifically to provide that the outcomes of sexual assault cases are not protected by FERPA when shared with the victim. And federal Clery Act regulations — regulations that implement the federal campus crime awareness statute — require that the outcome of a disciplinary case involving a sex offense be disclosed to both accuser and accused.
In a 2008 ruling involving the University of Virginia, the Department of Education stated that a university “cannot require an accuser to agree to abide by its non-disclosure policy, in writing or otherwise, as a precondition to accessing judicial proceeding outcomes and sanction information under the Clery Act.” That means colleges that threaten students with discipline for talking about their own sexual assault cases are in violation of federal law.
FERPA applies to education records that are maintained by an agency or institution. Student speech, however, is not an education record, so speech between student journalists and sexual assault victims by definition cannot violate FERPA. In the same way, any student newspaper that quotes sexual assault victims as part of its reporting does not violate FERPA.