The U.S. Department of Education on Wednesday weighed in on an alleged case of sexual assault at the University of Oregon that has prompted heated debate about how privacy protections apply to students’ therapy records. While the department’s statement appears to lend credence to the university’s assertion that it was justified in obtaining the student’s records, it also seems unlikely to settle a dispute that has intensified in recent days.
The Family Educational Rights and Privacy Act, known as Ferpa, allows a university to obtain such records to defend itself in a lawsuit, as long as more-stringent state privacy protections don’t apply, a department spokeswoman, Denise Horn, wrote in an email to The Chronicle.
At the same time, the statement warned that it is “critically important to the department that all higher-education institutions ensure safe, nondiscriminatory learning environments that are free from harassment and sexual violence for our students. Any attempt to intimidate individuals who raise or support complaints about sexual violence would raise serious concerns of retaliation.”
That would appear to be a reference to the university’s counterclaim against the alleged rape victim, identified only as “Jane Doe,” who has sued the university over its handling of her case. The counterclaim, which was dropped after a backlash from those who accused Oregon of “suing rape survivors,” had criticized the student for bringing unfounded charges against the university and its basketball coach, who she said valued winning games above protecting students. The university eventually dropped its demand that she or her lawyers pay its legal fees.
The case has created uncomfortable questions about the confidentiality of on-campus counseling sessions for alleged rape victims who sue their colleges.
Ferpa protects the privacy of student records, and colleges that violate it could lose their eligibility for federal student aid. It also provides assurance of confidentiality to students seeking support and guidance after a traumatic event.
But there are exceptions that allow some counseling-center records to be released. Whether, or when, records of therapy sessions can be released has been a matter of dispute. Differing interpretations of the law have divided Ferpa experts and campus counseling-center advisers who worry that the questions being raised will deter students from getting help. Administrators, meanwhile, are often flummoxed by confusing legal nuances and clashing state and federal requirements.
‘Illegal and Unethical’
The case that has many educators debating the limits of privacy protection involves a lawsuit filed in January by an Oregon student against the university and its head basketball coach. It alleges that the university mishandled her sexual-assault complaint against three basketball players who were suspended from the university after a campus disciplinary proceeding found that they had engaged in “sexual conduct without explicit consent.” Among other things, the student said the university had violated her privacy rights by retrieving the records of her therapy sessions at the campus counseling center and then turning those records over to its general counsel’s office.
In a column in The Chronicle, Katie Rose Guest Pryal, a former professor of law at the University of North Carolina at Chapel Hill who specializes in higher education, mental health, and social-justice issues, wrote that Oregon was “using her own post-rape therapy records against her.” It was legally able to do that, she argued, because of a “devastating privacy loophole” that allows the release of certain protected student records when a lawsuit has been filed.
Some privacy experts took issue with her interpretation of Ferpa.
The exemption from Ferpa protections applies to education records, not therapy or treatment records, according to Brett A. Sokolow, executive director of the Association of Title IX Administrators, a group that advises colleges in sexual-assault cases.
Here’s how the exclusion reads: “If a parent or eligible student initiates legal action against an educational agency or institution, the educational agency or institution may disclose to the court, without a court order or subpoena, the student’s education records that are relevant for the educational agency or institution to defend itself.”
Retrieving the Oregon student’s treatment records, Mr. Sokolow argued, was “illegal and unethical.”
Steering students away from campus counseling centers, as Ms. Pryal has advised, is also wrong, Mr. Sokolow said. “Administrators cannot and should not access a student’s counseling records without permission. We direct victims to counseling because it is confidential.”
‘Come On and Take a Look’
Elizabeth Gong-Guy, president of the Association for University and College Counseling Center Directors, said that once a student signs a form releasing her counseling records to her lawyer, they cease being “treatment records” that are held at the strictest levels of confidentiality and instead become “education records” under Ferpa. Whether a student was seen at a campus counseling center or by a therapist in the community, the records become documents that a university being sued can legally obtain, she said.
When students sign such a form, college counselors should clearly inform them, in writing, what happens to their privacy protections, said Ms. Gong-Guy, who is also executive director of UCLA Counseling and Psychological Services.
But students shouldn’t worry that counseling centers will share their records without their permission, she contended. “We’re not going to open up our files to administrators and say, ‘Come on and take a look.’ Students and parents need to understand that treatment records are protected and that student confidentiality is respected.”
The Education Department’s email to The Chronicle in response to a request for clarification seems to support her reading of the law.
“Under Ferpa, if the institution discloses treatment records to anyone other than the treatment provider or another professional of the student’s choice, the records become education records, and all of the Ferpa provisions,” including the disclosure exemptions, “then apply to those records,” the statement says. “Thus, Ferpa would permit the treatment records to be disclosed in litigation between the student and the institution if the records are relevant for the institution to defend itself.”
While complying with Ferpa, Ms. Horn said, colleges should “respect the expectation of confidentiality that all Americans hold when talking to a counselor or therapist.”
‘Common-Sense Exceptions’
University of Oregon officials have contended that their actions were legal.
Oregon law also permits a university to collect and review relevant documents when it learns it’s being sued, the officials have argued. The alleged victim’s emotional state was highly relevant, the university stated in its counterclaim against the student.
“Under Oregon law, a plaintiff who places her psychological state at issue by seeking damages for emotional distress waives any psychotherapist/patient privilege or doctor/patient privilege and is required to disclose counseling records related to her psychological state,” the document said. An Oregon spokesman said the university had retrieved the student’s records only after her lawyer requested them.
Some observers see a selective view of the law in the university’s argument. “Colleges are very, very good at understanding Ferpa for what it is—a narrowly limited statute with ample room for common-sense exceptions—when a narrow understanding of the statute serves their self-interest,” said Frank D. LoMonte, executive director of the Student Press Law Center, a nonprofit organization that provides guidance and legal counsel to student journalists. “But when colleges are asked to produce public records, Ferpa suddenly becomes an all-encompassing secrecy statute.”
The Court of Public Opinion
Just because Ferpa says a university can do something doesn’t mean it has to, or should, other experts argue.
While it appears the federal privacy law would not necessarily prohibit a university from sharing counseling records, “it also does not require it, nor does it pre-empt other laws that might be applicable to a given record,” Steven J. McDonald, general counsel at the Rhode Island School of Design, wrote in an email to Ms. Pryal, which he shared with The Chronicle.
“In particular, state medical-confidentiality laws continue to apply to, and to bind, medical professionals on campus, and there is nothing in Ferpa that permits them to breach those laws,” he wrote.
Universities, he said, should use discretion when deciding whether to obtain treatment records. Peter F. Lake, director of the Center for Excellence in Higher Education Law and Policy at Stetson University. agreed.
“We have to ask ourselves, ‘Are we going to use every available tactic simply because we can?’” he said. Getting access to a student’s counseling records, like pointing out that an alleged rape victim was drunk, might bolster a college’s legal case but ultimately backfire, he said.
“What if someone comes to court with an argument that wins the case but seems contradictory to the goals of the university?” he said. In that case, “you might be criticized in the court of public opinion.”
The Oregon case raises “serious ethical issues” that could inhibit students from seeking help, according to Mr. LoMonte. “A reasonable student believes herself to be speaking in confidence during a counseling session, and certainly does not assume she will have her words used against her in litigation,” he said.
Even if the university was legally entitled to the student’s therapy records, he said, “it is certainly a very aggressive use of Ferpa that is inconsistent with the normally obsessive adherence to privacy that colleges exhibit when disclosure does not serve their public-relations interests.”
Katherine Mangan writes about community colleges, completion efforts, and job training, as well as other topics in daily news. Follow her on Twitter @KatherineMangan, or email her at katherine.mangan@chronicle.com.
