In Sexual-Misconduct Cases, Colleges Weigh Privacy Against Transparency

Ed Reinke, AP Images

In an attempt to guard information about the victims in a sexual-misconduct investigation, the University of Kentucky took an uncommon approach: It sued the student newspaper.

The lawsuit was the latest development in a prolonged tussle between the publication, the Kentucky Kernel, and the university over access to information about a case involving a professor accused of sexual assault and harassment. The Kernel argues, and the state attorney general’s office agreed, that the details of the complaints should be released. But the university says that would endanger the privacy of those involved. So, to challenge the attorney general, it sued the paper.

Although the ordeal at Kentucky is unusual, the underlying tension is not. This tug-of-war between transparency and privacy is one that virtually all colleges experience, especially as campus sexual assault and sexual harassment attract more attention and outcry than ever before. And a law called the Family Educational Rights and Privacy Act, or Ferpa, sits at the center of the debate.

Ferpa, which became federal law in 1974, states that neither schools nor higher-education institutions can generally release a student’s education records without written consent to anyone other than the student or, if that person is a minor, the parent. (“Education record” is, generally defined, information that is directly related to a student and that is maintained by an educational agency or institution.)

Some transparency advocates, including journalists, argue that Ferpa often acts as a “shield” that colleges use to withhold information from the public, and even from students who are involved in the cases. But legal experts who work for higher-education institutions point out that colleges have an obligation — legal and ethical — to protect the privacy of both the accused and the accusers.

Not Trade Secrets

Students are often unaware of their rights under Ferpa, and campus adjudications of sexual-assault complaints are a fertile environment for misinterpretations of the law, says Adaku Onyeka-Crawford, counsel for education at the National Women’s Law Center.

Ms. Onyeka-Crawford says some students she advises, who are usually the complainants in disciplinary proceedings, are told by their colleges that they may not see the results of their own cases. And others are given access to the information only after signing a gag order. Colleges often justify that demand by citing the privacy rights that Ferpa guarantees to the accused, which is an incorrect reading of the law, Ms. Onyeka-Crawford says.

Ferpa has an exception allowing colleges and universities to disclose information about a case to the students involved, she says, and the guidance on Title IX from the Department of Education requires the institutions to do so. As for gag orders, she says, legally, “no one can stop a survivor or a student accused of sexual assault from telling their story to another person.”

Another question colleges have to answer is how much information can be shared with the accused in cases of sexual misconduct. Many of the complaints and much of the evidence presented in a case are some form of education records, which are protected under Ferpa. So in deciding what information to share and what to redact, officials must balance the right of the accused to know what claims have been lodged against the right of the accuser to have privacy.

Ferpa’s domain is not limited to the specific details of a case. Some advocates say colleges wrongly cite Ferpa in order to avoid having to disclose information on cases of alleged sexual violence.

Michele L. Dauber, a professor of law at Stanford University, says institutions can reference Ferpa “like a Harry Potter curse” to avoid providing useful data that could make a difference. Many colleges do not release information such as the number of hearings, findings of responsibility, and sanctions imposed on a regular basis, she says. They cite Ferpa as their reason, she says, and claim that people might be able to sniff out information that identifies individuals from those collective numbers.

It’s possible that if there were only one case in a year, people could figure out who was involved by studying the data. But Ms. Dauber says that colleges often resist compiling data in two-, three-, and five-year blocks.

“They are acting like private corporations and that these are trade secrets, or something,” Ms. Dauber says.

Colleges and universities are not companies, she says. Public institutions receive billions of dollars in government money. Private ones, though not as closely married to their states, benefit from tax breaks and federal financial aid. So both have an obligation to be transparent with the public that supports them, Ms. Dauber says.

In addition, timely and accurate information is what prompts change on campuses, she says. When she led the Board on Judicial Affairs at Stanford, Ms. Dauber compiled the numbers on sexual-misconduct hearings from 1996 to 2009 and then released them to the public. Over that period of time, Stanford reported 175 forcible sex offenses under the Clery Act. Only four of those cases advanced to hearings, and two of the four people accused were found responsible, she says.

“It was impossible for anyone to say that we were doing a good job once they saw that,” Ms. Dauber says.

A Very Broad Statute

However, the criticisms leveled against Ferpa often target the policy itself and not its enforcement by colleges, which are required to follow the letter of the law, says Steven J. McDonald, general counsel for the Rhode Island School of Design.

Many people are unhappy with Ferpa, says Mr. McDonald. And “you can have a dispute about that and think that Ferpa should be something different than what it is,” he says, “but the audience for that should be Congress because on our campuses, we can’t just change the law ourselves to meet someone’s policy requests.”

Also, the law was enacted four decades ago largely in the spirit of protecting students’ privacy regarding “classic youthful indiscretions,” such as underage drinking or other minor offenses that in no way resemble the seriousness of sexual-assault allegations, Mr. McDonald says.

“Congress did not, in 1974, anticipate all the different things that would happen. So we have this very broad statute that is being faulted for not having anticipated those things,” Mr. McDonald says.

Colleges also have a real responsibility to protect the privacy of those involved in sexual-assault and sexual-harassment hearings. The law’s purpose is to give some control to students over their own information, says Scott A. Roberts, a managing partner at Hirsch Roberts Weinstein LLP who regularly represents colleges and universities.

Ferpa guards the privacy not only of the complainant and the respondent in those cases, but of the witnesses as well, Mr. Roberts says. The most common question that students who may become witnesses ask him is, “Who is this information going to be shown to?”

Ferpa acts as a sort of guarantee that a witness’s testimony will be seen only by the relevant people, Mr. Roberts says. Without that assurance, some students might be unwilling to talk, which could have a detrimental effect on the thorough investigation and adjudication process that Ferpa allows for, he says.

“It’s these kinds of subtleties that a school needs to be aware of,” Mr. Roberts says, “before it starts going chapter and verse about how a decision was made.”