Nothing “private” about this high-profile walkout by Minnesota athletes

The University of Minnesota Golden Gophers came within hours of becoming the first football team ever to boycott a postseason bowl game in protest of the disciplinary suspensions of 10 teammates. Players criticized the university’s lack of transparency and communication –
“under the cover of student privacy,” as a team spokesman put it – in explaining why Athletic Director Mark Coyle banned 10 of their teammates from playing in the Dec. 27 Holiday Bowl. The walkout ended after Minneapolis’ KSTP-TV obtained and released investigative reports compiled by Minneapolis police and the university’s Office of Equal Opportunity and Affirmative Action, graphically describing allegations of sexual assault that led the OEOAA to recommend expelling five athletes, suspending four and putting a tenth on disciplinary probation.

Source: Minneapolis Star-Tribune, “82-page report’s details broke Gopher players’ walkout,” Dec. 17, 2016

Former SPLC Executive Director Frank LoMonte: Of all of the many faults in federal student privacy law, its greatest flaw may be that it’s one-size-fits-all – which invariably means that one size fits none correctly.

On paper, the Family Educational Rights and Privacy Act recognizes no distinction between the privacy rights of a kindergartner and the privacy rights of a 21-year-old athlete playing on a bowl-bound NCAA Division I football team. At common law, there is all the difference in the world, of course – if a 6-year-old sprains her elbow on the monkey bars, it’s nobody’s business, but when Brigham Young’s quarterback does, it’s national news

That’s how FERPA ought to work – and in the view of a growing number of judges, it’s possible to waive FERPA privacy implicitly by taking on a high-profile campus position. But because the statute fails to contemplate situations where the behavior of students is of legitimate public interest and importance – and being an accused perpetrator of sexual assault is up there on the “public interest and importance” scale – colleges have all the cover they need to withhold information strategically for image-control purposes.

Although it’s normally true that the names of students accused of disciplinary violations are confidential, at least three distinguishing factors remove the UM situation from the norm, so that the university could almost certainly have been more forthcoming.

(1) The outcomes of cases where students are found liable for sexual assault aren’t confidential.

It bears emphasizing – because college legal departments (cough cough UNC) live in a state of blissful denial that the exemption exists – that FERPA does not apply to the outcomes of disciplinary cases where there’s a finding of misconduct equating to a violent crime, including sexual assault. Here’s the exemption, straight out of 20 U.S.C. Sec. 1232g(b)(6)(B):

(B) Nothing in this section shall be construed to prohibit an institution of postsecondary education from disclosing the final results of any disciplinary proceeding conducted by such institution against a student who is an alleged perpetrator of any crime of violence (as that term is defined in section 16 of title 18), or a nonforcible sex offense, if the institution determines as a result of that disciplinary proceeding that the student committed a violation of the institution’s rules or policies with respect to such crime or offense.
© For the purpose of this paragraph, the final results of any disciplinary proceeding—
(i) shall include only the name of the student, the violation committed, and any sanction imposed by the institution on that student(.)

So if the disciplinary proceeding reached a “final result,” then the names of the players, the violations they committed and the sanctions imposed were all a matter of public record releasable by UM without penalty.

Was there a “final result?” That’s … tricky. 

The university’s equal-opportunity office notified the accused players in a Dec. 13 memo that they’d been found liable for violating university rules against sexual assault and sexual harassment, and would be disciplined unless they requested a formal hearing. The letter called the decision an “outcome,” but it also referred to expulsion as an “offer” to resolve the case – indicating that it was possible to reject the offer. So this was sort of the Schrodinger’s cat of disciplinary cases: Final and not final at the same time.

(2) UM’s athletes have already waived FERPA confidentiality.

As the SPLC’s Michael Bragg explained in a 2015 magazine article, athletes invariably sign consent forms enabling their schools and the NCAA to disclose just about anything they find advantageous. 

Athletes at all levels sign an NCAA-mandated privacy waiver stating in part:

You … agree that information regarding any infractions matter in which you may be involved may be published or distributed to third parties as required by NCAA policies, bylaws or procedures.

(Curiously, athletes at lower-division schools are told to sign a broader waiver that goes on to state that the NCAA may release confidential information to the media “as necessary to correct inaccurate statements,” a condition not present in the Division I waiver signed by those at the highest-profile programs.)

It’s doubtful that any NCAA “policy” or “procedure” requires UM to disclose details about way athletes are disciplined, though. So by a strict interpretation of the waiver, it wouldn’t apply to releasing a description of disciplinary charges.

(3) UM already (arguably) had violated FERPA anyway

FERPA is understood to apply to the release of education records, or the contents of those records, if the records are unmistakably traceable to known individuals. So it would be equally forbidden to say “John Smith got caught cheating on a test” or to say “the guy in the top bunk in room 310 of Anderson Hall got caught cheating on a test.” 

UM had already told the public that 10 players wouldn’t be making the trip to San Diego for disciplinary reasons. It would be relatively simple – see, kids, math IS useful – to scan the Gophers’ roster and figure out the 10 disciplined players based on who does and doesn’t dress for the bowl. So under the strictest understanding of FERPA that is shared by college lawyers and traumatic-brain-injury sufferers, releasing the number “10″ in the same sentence with the world “discipline” already was sufficiently “identifying” to violate FERPA.

If it is not a FERPA violation to say “10 players are being disciplined” then it is no greater violation to add “…for sexual assault.” FERPA does not recognize “grades” of violation – either you’re FERP’d or you’re not – and nothing about the additional description would have made the statement any more “identifiable.”

(So Coach Tracy Claeys was clearly mistaken in insisting that he could not narrow down for the media the number within those 10 who’d been recommended for expulsion. Once you’ve disclosed one statistic, disclosing two does not suddenly make you a violator.)

Finally, even if FERPA foreclosed publicly announcing the names of disciplined athletes and the offense for which they were suspended, UM could have disclosed more to insiders within the football program, many of whom are potential witnesses if the players’ cases go before a disciplinary appeal board. It certainly does not violate FERPA to tell the people your disciplinary investigators are interviewing “this is the nature of the offense we are investigating” – it can’t, or you’d never be able to question witnesses in any disciplinary case – so fellow Gopher players inevitably would have been informed about the seriousness of the charges sooner or later. 

The bottom line is that UM could have been more transparent about the severity of the disciplinary charges without compromising the contents of any FERPA-protected records. So the wounds that the university suffered from a weeklong standoff with its own athletes were entirely avoidable and self-inflicted.

As I wrote in this op-ed column for the Star-Tribune of Minneapolis: 

If the Minnesota football case does not awaken Congress to the overdue need to rewrite this disastrously broken statute, then somebody needs to check for a pulse.

We rate this: a questionable use of FERPA.