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

 Brett;

schools worry far too much about the perps' lawyers -- 

as you know -- there is no "due process" for accused students because a 
university is not the government, thus traditional due process rights have no 
application -- (unless a student is punished in a manner that invokes a 
protected class status which raises civil rights issues -- but this is not 
applicable for students accused of sexual crimes -- or any crimes -- indeed, 
if anyone has a constitutional claim, it is the female who, as a victim of 
gender-based violence, has a civil rights claim because of the nature of 
sexual assault as an act of discrimination)

thus -- if a school treats all repeat offenders as subject to identification 
policies under FERPA, there is no real risk that any attorney can or will 
have a valid claim -- (and at the same time, the lack of information sharing 
increases the risk the victim's lawyers will have schools for lunch when 
their failure looks like "deliberate indifference")

as for the "lunch" the lawyers might have re FERPA -- since the supreme court 
ruled that there is NO cause of action for money damages under FERPA even IF 
a violation occurs, that lunch would be - at most - a nibble -- ; ) - and 
because it is clear schools can adopt policies allowing for disclosure, 
especially for repeat offenders -- this shouldn't be an issue at all

finallly -- belanger is about juvenile records; records regarding PAST 
behavior -- which are already confidential -- though i agree that while i 
haven't read the case - it may stand for the proposition that records CAN 
become "education records" even though obtained elsewhere -- but if the point 
is that they can be given NEW confidentiality -- i think the answer is no -- 
and belanger doesn't suggest otherwise b/c juvenile records are already 
confidential under state law -- 

in any case, unlike in belanger, the issue of whether something other -- like 
a law enforcement report related to a crime that OCCURRED on campus or in a 
temporal sense that affects current students' safety - might easily fall 
under the health and safety exception seems an easy argument to make --

also -- don't forget the supreme court's case that held it did not violate 
FERPA to allow students to see each others' papers and give each other grades 
-- even though the papers were clearly "education records" -- and no 
permission was required, etc. It seems to me if students can see and grade 
each others' academic work, which goes to the heart of the education 
experience, there can hardly be a FERPA prohibition to allowing them to see a 
law enforcement report of a criminal act which has NOTHING to do with 
education -- 

wendy


 


 

-----Original Message-----
From: 

To: 
;
 

Sent: Wed, 24 Oct 2007 2:09 pm
Subject: Re: SAPC Digest, Vol 845, Issue 1-a bit more on FERPA and 
confidentiality














Wendy,


?


I think some repeat perps will fall into the emergency category.? But, 
if we say all will, we are being overinclusive.? I want to stop them as 
much as you do, but I want to stop them using the law, not bulldozing it.? 
Otherwise, if we cut corners, their attorneys will have us for lunch.? I 
want our actions to hold up to legal contest.? 


?


In terms backing up my assertions on records of local police being 
protected under FERPA once shared, a colleague directed me to the following 
case:


?


In Belanger v. Nashua, New Hampshire School District, 856 F. Supp. 40, 
48-50 (D.N.H. 1994), a federal court held that records pertaining to a 
student's 
juvenile court proceedings that were maintained by the school district's 
attorney were "education records" under FERPA. In so holding, the Belanger 
court 
stated that both the plain language of the statutory definition of "education 
records" and the legislative history of the Buckley-Pell amendment made clear 
that "education records" included any documents pertaining to a student that 
are 
maintained by the institution.


?


I have yet to read the case, but at first blush, it seems to concur with my 
belief of how FERPA works.


?


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"
(a not-for-profit corporation)
20 Callery 
Way
Malvern, PA 19355-2969
Tel. (610) 993-0229
Fax (610) 
993-0228
www.ncherm.org








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