Fight Over the Recording of Title IX Proceedings Exposes Gaps in Law and Trust

Jaime Danies, Columbia Spectator

Things got testy when Columbia University administrators met privately with students demanding a right to bring audio recorders with them when questioned about their complaints of gender-based misconduct.

Curious about what happened? Listen yourself. One student surreptitiously recorded the meeting last month so that her advocacy group, No Red Tape Columbia, could post it all online.

She did so legally because Columbia is in New York, one of 39 states that allow people to record conversations without the consent of other participants. Some of its students have seized on audio recorders as tools to try to ensure their institution complies with the federal gender-equity law known as Title IX.

Just as they secretly recorded their meeting with administrators, No Red Tape members want to secure Columbia students the right to record any interviews, hearings, and appeals related to their complaints of rape, sexual assault, and other forms of gender-based misconduct.

Columbia has moved in the opposite direction. It recently revised its policies to clearly prohibit students involved in such misconduct proceedings from taking advantage of their freedom to record them under state law. Administrators there are standing by a requirement that students who bring misconduct complaints sign an agreement to abide by the rule, with violators facing disciplinary sanctions.

The Columbia debate raises tough questions related to the protection of students under Title IX: How do colleges allow transparency in disciplinary proceedings while safeguarding students’ privacy? How can students ensure that administrators take their misconduct complaints seriously, and not just whitewash them?

Suzanne Goldberg, Columbia’s executive vice president for university life, says officials there have carefully considered students’ requests to record such proceedings and concluded that the costs outweigh the benefits.

Many other students, she says, actually seek assurances that they are not being recorded when they meet with investigators, and might be discouraged from coming forward with misconduct complaints if they feared that recordings of their statements would fall into the wrong hands.

No Red Tape Columbia argues that the university has overstated such concerns, and accuses administrators there of using the recording ban to cover up their failure to properly act on complaints. “What is most important to me is to hold the university accountable,” says Brandee C. Blocker, a law student and a leader of the campus group.

Further complicating the debate are longstanding tensions between Columbia, which is the subject of several federal investigations under Title IX, and student activists who have raised questions about the administration’s handling of reported sexual violence.

So far, the group has publicized its cause through a campus protest last month and through an online petition endorsed by other student advocacy groups and several academic-labor unions. “We are going to continue to escalate,” Ms. Blocker says.

Lack of Guidance

The tensions at the heart of the Columbia debate pose quandaries for other colleges. Among those grappling with how to balance transparency and privacy, the University of Kentucky has gone to court to block its student newspaper’s access to information from a sexual-misconduct investigation involving a professor. It has argued that the release of even heavily redacted copies of misconduct complaints would violate federal laws protecting student privacy and would discourage other students from filing them.

At both Columbia and Stanford University, people involved in rape cases have used online media to publicize their adversaries’ emails and texts, giving credence to fears that recordings will be widely shared.

Peter F. Lake, director of the Center for Excellence in Higher Education Law and Policy at Stetson University, says colleges are at a loss for guidance because the chief law protecting student confidentiality — the Family Educational Rights and Privacy Act, or Ferpa — was not drafted with Title IX in mind. The Education Department’s guidance on records of sexual-misconduct proceedings has been limited mainly to its requirement of at least some access for all parties involved.

“They are giving us a lot of space in which to make choices,” Mr. Lake says. Some advocates for accused students “are pushing for full and complete access” to such records, but the leaking of such information could be “catastrophic, particularly in terms of retraumatizing the victims.”

Many colleges make their own recordings of sexual-misconduct hearings. Such recordings are covered by Ferpa, and access to them is restricted, through either redactions of transcripts or requirements that the recordings or transcripts not leave a room.

As for students’ ability to act on their own to record either disciplinary hearings or their statements in interviews by investigators, the picture is mixed. A recent American Law Institute analysis of colleges’ policies concluded that many expressly prohibit students from making such recordings, and Ms. Goldberg says Columbia administrators have determined that “virtually all of our peer schools” have similar policies in place.

But Brett A. Sokolow, who conducts Title IX-related investigative interviews as president of the Ncherm Group, a consulting and law firm, says he often gets requests from students or college employees to record them, and “most colleges don’t have a clear policy allowing it or prohibiting it.” He says colleges need such policies because “a lot of students won’t ask permission. They’ll just come in and record.”

Haunted by Words

Ms. Blocker, the Columbia law student, says she neither asked permission nor announced her intentions when she discreetly turned on her cellphone’s recorder while being interviewed by university investigators in the spring of 2015. Ms. Blocker, who was being interviewed over her accusations of sexual assault and harassment against a classmate, says she tapped the button on her phone for practical reasons. She routinely uses it with the university’s blessing to record lectures, in response to a disability.

In an essay last month in re:claim, an online student publication, Ms. Blocker argues that her recordings did more than refresh her memory. She says that they — in themselves, and when compared with the investigators’ notes — enable her to prove “that school officials misrepresented and distorted facts to help my assailant get away with it.”

Ms. Blocker’s essay posits that she was the reason that Columbia revised its policies to clearly prohibit students who have complained of gender-based misconduct from recording hearings, appeals, and investigative interviews. The revised policies, in effect as of September, require such student complainants to sign an agreement to abide by the rule or face disciplinary sanctions for violating it.

Ms. Goldberg, who calls Columbia’s policies “a national model,” says it has long barred students from recording investigative interviews, and “we thought it would be useful to clarify what had been the practice for some time.” Among the university’s chief concerns, she says, is that state law would require Columbia to make the complaining students’ recordings available to accused students, and vice versa.

No Red Tape Columbia’s petition accuses Columbia’s administration of being “more concerned with protecting its image and reputation than protecting the rights and well-being of survivors.”

Sofie Karasek, director of education for the advocacy group End Rape on Campus, says she understands why students would want to make recordings if their college is not doing so, “given how often things can get distorted in these processes.”

Other national advocates take a different view. Laura L. Dunn, founder of the advocacy group SurvJustice, says, “I don’t want to discourage student activism,” but there are other means of bringing transparency to the process, such as requirements that colleges record proceeding themselves. Unlike recordings made by colleges, she says, recordings by students are not covered by Ferpa, and thus are much more vulnerable to being shared in ways that cause harm.

“There is a difference between a transcript with names redacted and an actual audio recording,” notes Michele Landis Dauber, a professor of law at Stanford who helped design its disciplinary process for sexual-assault cases. A recording made by a complaining student, she says, can be subject to a subpoena if, for example, the accused party sues for defamation.

“If he is the kind of person who would rape someone,” Ms. Dauber says, “he is the kind of person who might try to shame you in public.”

Peter Schmidt writes about affirmative action, academic labor, and issues related to academic freedom. Contact him at peter.schmidt@chronicle.com.