Discussion List for campus-based and allied personnel working to end gender-based violence on campus.

Wendy and S. Dan,  

I understand what both of you are trying to accomplish, and in purpose I am  
in accord.  But, we are giving legal advice to folks on this list, and  
rather 
than drawing broad strokes, I am trying to be precise about how to  
accomplish a goal all three of us share.  So, let me be  precise. 
 
The FERPA health and safety exception is to be narrowly construed, to  
include emergencies where health and safety is clearly at risk (see  below).  
If a 
victim is in harm's way, release is possible.  But, the  speculative future 
risk to others, while implicating health and safety, is not  strictly an 
emergency.  
 
Instead, I suggest that you use the approach I suggested before.   Assume you 
have two alleged victims who have independently made formal  complaints 
against the same accused student.  They are not aware of each  other.  If you 
are 
the administrator, ask each of them separately "If there  was another female 
student making a similar complaint, would you want to know  about her?"  If 
both 
say yes, have them execute written FERPA consents to  communicate their names 
to each other.  FERPA will allow you to share  that.  From there, they will 
connect the dots on their own and you won't  have been a party to release of 
any personally identifiable information in  violation of FERPA.  
 
All I am saying is use some subtlety...there are clever--and legal--ways  
around FERPA's restrictions.  Moreover, I think Wendy's comment about Title  
IX 
is well-taken.  FERPA is not interpreted to conflict with Title  IX.  Thus, 
if 
you had a second complaint, where the m.o. was so similar as  to establish a 
pattern by a repeat offending perp, I would call each alleged  victim as a 
witness at the hearing of the other.  FERPA would allow you to  release 
information at the point for purposes of the judicial  investigation.  
Another clever 
end-run around the regs.
 
Here's the info on the FERPA health and safety provision:
 
"Another FERPA provision allows an educational agency or institution to  
disclose personally identifiable information from education records, without  
prior written consent, 
in connection with an emergency [to] appropriate persons if the  knowledge of 
such information is necessary to protect the health or safety of  the student 
or other persons. 
20 U.S.C. § 1232g(b)(1)(I); 34 CFR §§ 99.31(a)(10) 99.36. 
Congress added this exception to the written consent requirement when FERPA  
was first amended, on December 13, 1974. The legislative history demonstrates 
 
Congress' intent to limit application of the "health or safety" exception to  
exceptional circumstances -- 
Finally, under certain emergency situations it may become  necessary for an 
educational agency or institution to release personal  information to protect 
the health or safety of the student or other students. In  the case of the 
outbreak of an epidemic, it is unrealistic to expect an  educational official 
to 
seek consent from every parent before a health warning  can be issued. On the 
other hand, a blanket exception for "health or safety"  could lead to 
unnecessary dissemination of personal information. Therefore, in  order to 
assure that 
there are adequate safeguards on this exception, the  amendments provided 
that 
the Secretary shall promulgate regulations to implement  this subsection. It 
is expected that he will strictly limit the applicability of  this exception."
Regards,

Brett A. Sokolow, JD
Special Advisor to  the United States Air Force Academy
Special Counsel to the VP for Student  Affairs, Saint Mary's College (IN)
Special Counsel to the President, Hobart  and William Smith Colleges
Special Counsel for AOD Issues, Barton County  Community College
Special Counsel for Student Conduct Issues, Warren Wilson  College
Special Counsel to the Dean of Students, Hendrix  College

President, The National Center for 
Higher Education Risk  Management, Ltd.
"Best Practices for Student Health and  Safety"


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Malvern, PA 19355-2969
Tel. (610) 993-0229
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