WASHINGTON — Western Washington University refused to release the names of students guilty of sexual misconduct in Title IX records they sent to student journalists at The Western Front. But in an October 22 court decision, a Whatcom County judge sided with student journalists, saying the law doesn’t protect the names of students guilty of sexual misconduct and other violent acts.
Erasmus Baxter, Asia Fields, and Julia Furukawa from WWU’s student newspaper, The Western Front, filed a lawsuit in 2019, challenging the university’s claim that the Family Educational Rights and Privacy Act (FERPA) and Washington’s Public Records Act did not force them to release the names of students found to have committed sexual misconduct.
FERPA was created to protect personally identifiable information in student records — and it actually permits schools to release the names of those found guilty in final disciplinary decisions. After the journalists filed the lawsuit, WWU acknowledged that the names should have been public.
Despite this, some students and alumni named in the records filed injunctions in order to keep their identities private. But Judge David E. Freeman declined their requests.
“Universities across the country use FERPA to deny records that should be public, and this decision so far has shown that this isn’t the case and that schools can’t use [FERPA] as an excuse any longer,” Fields, who is now an investigative reporter at The Seattle Times, said.
According to Student Press Law Center Staff Attorney Sommer Ingram Dean, this decision puts Baxter, Fields, and Furukawa one step closer to winning their lawsuit. Five students and alumni in the disciplinary records filed appeals to the Washington State Supreme Court in December in an attempt to keep their identities secret. The plaintiffs’ attorney William Crittenden said the Supreme Court will most likely send the appeals back to the Court of Appeals Division 1 to decide.
Crittenden said he expects the court to rule in the students’ favor, but that the lawsuit will “proceed pretty slowly,” and the court’s final decision could take years. However, Crittenden says student journalists can point to this decision if their schools deny them records or redact the names of students found guilty of violent crimes.
WWU Director of Communications Paul Cocke said that WWU is waiting for the court to hear the appeals before they release the records.
5/20/2019 — Student journalists sue Western Washington University for withholding public records about sexual misconduct by students
WASHINGTON – Students journalists filed a lawsuit against Western Washington University for withholding the names of students found responsible for sexual misconduct. The plaintiffs believe the university, based in Bellingham, is violating Washington’s Public Record Act, which would compel the university to release these names.
During a May 30 news conference, students Erasmus Baxter and Julia Furukawa announced the lawsuit, which is detailed here and filed in Whatcom County Superior Court. Also present was Student Press Law Center Senior Legal Counsel Mike Hiestand, who has worked closely with the students.
“Schools across the country, often acting with the blessing of the U.S. Department of Education, have fought tooth and nail to keep a lid on campus crime information — information that can paint a much different picture of campus life than that’s presented in the school’s glossy brochures and marketing materials,” said Hiestand during the conference, which can be streamed here.
We see this as an opportunity to set a legal precedent for student journalists in Washington state and show that these names are meant to be released under the Public Records Act. We’re taking on the brunt of pursuing this in court so that other student journalists don’t have to.Erasmus Baxter, student journalist
Alumna Asia Fields is also listed as a plaintiff. The students are represented by Seattle-based attorney William Crittenden. They filed the lawsuit independently from any student media outlet.
“We’re just trying to make sure that student journalists have access to the information they need to evaluate how colleges are handling these cases and what happens after an investigation concludes and a student is punished,” said Fields. “We can get records now that show whether a student was expelled or suspended, but what we don’t know is whether they are returning to campus or whether they’re going somewhere else and maybe reoffending.”
Paul Cocke, director of the university’s Office of University Communications and Marketing, declined to comment, but provided the following statement: “It is the University’s position that redactions were in compliance with the Washington State Public Records Act. The University will respond to the complaint in Whatcom County Superior Court as part of the legal process.”
In 2018, Baxter and Fields wrote a story for WWU’s student newspaper, The Western Front, about a student who was suspended for sexual assault and later re-admitted to the university.
“That story really struck a chord with a lot of students who started protests and an email campaign. So we started digging into that issue a little more to try and understand how common [it] was,” said Baxter.
“In 2015, [the university] was under federal investigation for the way it handled sexual assault investigations, so this is an issue that has been on the forefront of many people’s minds in the community. It’s a scary thing, and Erasmus and Asia’s reporting on this issue reflected what the community was concerned about,” said Furukawa.
But in their pursuit of the university’s sexual misconduct records, which they received via state Public Records Act request, Baxter, Fields, and Furukawa all faced a glaring obstacle: the names of students found responsible for sexual misconduct violations were redacted.
“Some of these were very serious violations. We wanted to know if [the offenders] were back on campus and if currently there was a safety risk and how often they had been re-admitted,” said Baxter.
While Baxter said that university officials claimed that releasing these names would be in violation of the Family Education Rights and Privacy Act (FERPA), the law holds an exception in section § 99.31(a)(14): “An institution of postsecondary education may disclose the final results of a disciplinary proceeding, if it determines that the student is an alleged perpetrator of a crime of violence or non-forcible sex offense; and with respect to the allegation made against him or her, the student has committed a violation of the institution’s rules or policies.”
“We’re not looking for the names of survivors or people who’ve made reports [of sexual misconduct]. We’re looking for the names of students who have been found responsible through the conduct system. If we were to find out a survivor’s identity, of course we would not release that without their consent,” said Fields.
Fields noted that the concealment of these records has made it difficult for sexual assault survivors who want their stories told in student publications.
“We can’t necessarily verify that the person they say they reported is the same person in records, and even in cases where survivors have signed forms saying that they consent to us receiving unredacted reports, the university has not turned those over,” said Fields.
Students have the option under FERPA to waive their privacy rights and to request their own education records.
The students negotiated with university administration in hopes of obtaining the full records, but were met with little success. So they got in contact with the SPLC through its legal hotline.
Baxter got the idea to take legal action when he heard about the The Daily Tar Heel’s lawsuit against the University of North Carolina for withholding public records relating to sexual misconduct.
“We see this as an opportunity to set a legal precedent for student journalists in Washington state and show that these names are meant to be released under the Public Records Act. We’re taking on the brunt of pursuing this in court so that other student journalists don’t have to,” said Baxter.
Furukawa pointed out that while she and the other plaintiffs are prepared to pursue the lawsuit for however long it takes, the university could have avoided legal action if they simply released the records.
“Right now they’re using taxpayer dollars and student tuition money to pay for legal representation in a fight against transparency, when they could just give us the information and we’d happily be on our way,” said Furukawa.
Per the legal summons, Western Washington University has 20 days to respond in writing in order to defend itself against the lawsuit.
“I hope that we see a higher level of transparency that would allow students to know who is on campus and know not only what happens in the investigations, but after they are completed,” said Fields.
SPLC reporter Ginny Bixby can be reached at email@example.com or at 202-974-6318. Follow her on Twitter at @Ginny_BixbyWant more stories like this? The Student Press Law Center is a legal and educational nonprofit defending the rights of student journalists. Sign up for our free occasional News Roundup.