THE U.S. Department of Education’s Office of Civil Rights released a report April 29 with guidance for colleges and universities on how to prevent sexual assault and respond effectively when a student is assaulted, and how to improve transparency in enforcement efforts.
Now, 55 schools across the country, including Washington State University, are under investigation for possible Title IX violations over the handling of sexual violence and harassment complaints.
As a student journalist at Pacific Lutheran University, I’m well aware of the prevalence of sexual assault on college campuses, as well as universities’ reputations for covering it up. But many universities that refuse to publicize information about sexual assault are not maliciously trying to silence victims — they are trying to comply with federal privacy laws.
The U.S. Department of Education’s Office for Civil Rights report represents an excellent first step toward transparency, but it is missing a crucial element: amending the Family Educational Rights and Privacy Act (FERPA) to exclude student disciplinary records.
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FERPA is a federal law meant to protect students’ privacy. It says a university may not disclose a student’s educational records without that student’s written consent. Unfortunately, through a series of court cases in the 1990s, the Department of Education interpreted FERPA to mean that student disciplinary records are confidential educational records.
This means that if a student is found responsible of any crime in a student-conduct hearing, from underage alcohol possession to sexual assault, the outcome of that hearing will not show up on a background check and most likely does not follow that student outside of the university.
Unlike law-enforcement reports and judiciary proceedings, which are public record, no one can access student-conduct records without written consent from the student. While the Clery Act forces colleges to release daily campus crime reports and statistics from the campus police, as soon as a case is transferred over to the university’s student-conduct organization for a hearing, all transparency is lost.
Universities can lose federal funding for violating either Clery or FERPA, but when transparency laws and privacy laws intersect, they tend to interpret the gray areas in favor of privacy.
Lack of transparency in student-conduct systems is one of the biggest challenges for improving how universities handle sexual assault. Without transparency, there can be no oversight. There is no way to determine if a situation was handled appropriately if only student-conduct officers and a few administrators have access to the results of an investigation.
This secrecy also jeopardizes the safety of the community. I can go online and look up all the registered sex offenders living within a half-mile radius of Pacific Lutheran University’s campus, but I have no way of knowing how many offenders, who were found “responsible” only in student-conduct hearings, live on campus.
As a student journalist who has tried to investigate my own university’s response to sexual-assault cases, I’ve heard students complain about the student-conduct system mishandling their cases.
One woman told me that her assailant was found “responsible” under the student-conduct code, and he was punished by having to write an essay on “what consent means to me.” Another said she was one of four women who accused the same student of sexual assault, but he was found “not responsible” under the student-conduct code. (The Seattle Times does not name victims of sexual assault.)
I could never verify if these claims were true or not because the disciplinary records were protected under FERPA. Campus communities must place blind trust in their disciplinary systems to do their jobs.
Congress amended FERPA in 1992 to make way for the Clery Act and force colleges to release information about campus crime. It is time for Congress to amend it again, this time to exclude student-conduct records and the results of student-disciplinary hearings from FERPA’s protection. This would force universities to make these records, including incidents of sexual violence on campus, public as well.
Let’s get rid of the ambiguity surrounding privacy laws and rewrite FERPA to exclude disciplinary records, because too many students are being assaulted in secret.
Alison Haywood is a student at Pacific Lutheran University in Tacoma. She expects to graduate in May with a bachelor’s degree in journalism and German.