Yale: We can’t comment on former basketball player who either expelled or withdrew

The Yale Daily News is reporting (through a confidential source) that former men’s basketball captain Jack Montague was expelled for sexual misconduct last month. 

The university has not confirmed that. The Daily News writes:

The University has refrained from commenting on Montague and his status, as the Family Educational Rights and Privacy Act prohibits educational institutions from sharing a student’s private educational records without the student’s prior written consent. Since disciplinary actions are included in educational records, University administrators have said they are not permitted to disclose any information.

Source: Yale Daily News, Men’s basketball captain expelled for sexual misconduct (3/10/2015) (sent to FerpaFact by Greg Piper).

Former SPLC Attorney Advocate Adam Goldstein: At first, I thought this was an obvious overreach. When I actually thought about the definitions, however, it could also be Yale following a close line.

Let’s assume (only for the sake of argument) that the report is true. Could Yale disclose the final outcome of a disciplinary proceeding where the accused was found to have committed “sexual misconduct?” 

There’s an exception in FERPA that permits the disclosure of the final outcome of a disciplinary proceeding where the accused is found to have committed a violation of university rules that would be a “crime of violence” or “non-forceable sex offense.” See 20 U.S.C. § 1232g(b)(3)(B).

The phrase “crime of violence” is described in 18 U.S.C. § 16:

The term “crime of violence” means—

(a) an offense that has as an element the use, attempted use, or threatened use of physical force against the person or prop­erty of another, or

(b) any other offense that is a felony and that, by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense.

The associated regulations go further to clarify that forcible sex offenses are crimes of violence, but nonforcible sex offenses are statutory rape or incest. See 34 CFR § 99.39.

Hmm. Okay. So what does Yale consider “sexual misconduct?” From Yale’s Handbook for Instructors of Undergraduates

Sexual misconduct incorporates a range of behaviors including sexual assault, sexual harassment, intimate partner violence, stalking, voyeurism, and any other conduct of a sexual nature that is nonconsensual, or has the purpose or effect of threatening, intimidating, or coercing a person.

Much sexual misconduct includes nonconsensual sexual contact, but this is not a necessary component. For example, threatening speech that is sufficiently severe or pervasive to constitute sexual harassment will constitute sexual misconduct. Making photographs, video, or other visual or auditory recordings of a sexual nature of another person without consent constitutes sexual misconduct, even if the activity documented was consensual. Similarly, sharing such recordings or other sexually harassing electronic communications without consent is a form of sexual misconduct.  Both men and women are protected from sexual misconduct, and sexual misconduct is prohibited regardless of the sex of the harasser.

This ends up with the outcome falling into a grey area, depending on exactly what conduct was construed as sexual misconduct. 

Given that a non-forcible sex offense is limited to statutory rape or incest, some element that uses or at least substantially risks force is necessary to fit the definition of a “crime of violence,” and therefore, a forcible sex offense. 

But lots of things could simultaneously fit Yale’s definition of sexual misconduct without falling rising to the level of something that would, if true, constitute a crime of violence. Yale’s own handbook gives an example: secretly recording a consensual sexual encounter, while certainly an invasion of privacy and illegal, is not a crime of violence. 

Arguably, if student A sends student B a naked picture, and B shares it with C without A’s knowledge or consent, that’s sexual misconduct under the definition, but is clearly not a crime of violence as defined by FERPA. (Query whether this is the kind of offense that merits expulsion, though. “Stop being a creepy jerk” and a suspension feels like it’d do the trick, right?)

But of course, we don’t know what happened yet. So while we can invent scenarios where this would fall on one side of the line or the other, at the moment, this is a two-Arne situation.

We rate this: a questionable use of FERPA