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

[Brett Sokolow <>]

Not sure what Wendy could be referring to, but perhaps it is the little discussed language in the DCL and 2001 OCR Guidance that FERPA is construed not to conflict with Title IX?

Regards,
Brett A. Sokolow
Brett A. Sokolow, Esq.
Attorney-at-Law

Chair, The NCHERM Group (www.thenchermgroup.org)

Managing Partner, The National Center for Higher Education Risk Management (www.ncherm.org)

Executive Director, The National Behavioral Intervention Team Association (www.nabita.org)

Executive Director, The Association of Title IX Administrators (www.atixa.org)

20 Callery Way 
Malvern, PA 19355-2969
Tel. (610) 993-0229 
Fax (610) 993-0228


"Best Practices for Campus Health and Safety"
NCHERM serves as legal counsel/advisor to 30 campuses

 

From: "S. Daniel Carter" <>
Date: Sunday, October 21, 2012 5:01 PM
To: "T.S. Nelson" <>, "" <>, "" <>
Subject: Re: FERPA does not compel secrecy about sexual violence policies anymore than policies on murder

With respect to the University of Houston’s assertion that FERPA precludes them from discussing the details of disciplinary action against student Guillermo Flores, 19, who is, as reported by Houston Chronicle reporter Robert Stanton, charged with aggravated sexual assault of a child I believe that their interpretation is correct.

Certainly FERPA does not compel secrecy about the policies – in fact both the Clery Act & Title IX compel the disclosure of such policies. Rather, FERPA does compel, except in certain limited circumstances, that records concerning the steps taken in a particular student disciplinary case at a college or university remain confidential unless the student in question consents to their disclosure.

The most notable exception in this context, and what I presume Wendy Murphy is referring to, is the regulation at 34 CFR §99.31(a)(14)(i) which states that “An educational agency or institution may disclose personally identifiable information from an education record of a student without the consent required by §99.30 if the disclosure…is in connection with a disciplinary proceeding at an institution of postsecondary education.”

This is, however, not a blanket exception and is subject to fairly narrow limitations which hold that “The institution must not disclose the final results of the disciplinary proceeding unless it determines that — (A) The student is an alleged perpetrator of a crime of violence or non-forcible sex offense; and (B) With respect to the allegation made against him or her, the student has committed a violation of the institution’s rules or policies.”

The regulations, at 34 CFR §99.39, further define the scope of what may be released as follows –

Final results means a decision or determination, made by an honor court or council, committee, commission, or other entity authorized to resolve disciplinary matters within the institution. The disclosure of final results must include only the name of the student, the violation committed, and any sanction imposed by the institution against the student.

Sanction imposed means a description of the disciplinary action taken by the institution, the date of its imposition, and its duration.

Violation committed means the institutional rules or code sections that were violated and any essential findings supporting the institution’s conclusion that the violation was committed.

This means that prior to the completion, and final resolution of a student disciplinary matter records of a non law enforcement investigation or disciplinary proceeding remain confidential. Upon final resolution, and if there is a finding of responsibility that the institution’s code of conduct was violated then that finding of responsibility, the sanction imposed, and the nature of the offense (including the institution’s basis for such determination) may be disclosed in a manner that identifies the student found responsible. If there is no resolution or there is not a finding of responsibility then the records remain confidential.

There are other related exceptions, including for disclosure to the victim of any such crime whether or not there is a finding of responsibility, but that would not seem to be applicable in this instance as the issue is public disclosure. Incidentally, a few years back one institution refused to disclose the disciplinary results to the next of kin of a victim who’d been killed in an on-campus altercation claiming that the next of kin wasn’t the victim. This position was so absurd, albeit technically correct, that it resulted in a change in the law that not only allows the next of kin to receive such notification, it actually now requires it.

S. Daniel Carter

Director of the 32 National Campus Safety Index

VTV Family Outreach Foundation

P.O. Box 230024 * Centreville, Virginia  20120

Office: 202-684-6471

www.vtvfamilyfoundation.org

The VTV Family Outreach Foundation is a 501(c)(3) non-profit organization established by a majority of the families and survivors directly impacted by the April 16, 2007 tragedy at Virginia Tech. Determined to prevent a similar tragedy, the Foundation advocates for campus safety and security.

From: "T.S. Nelson" <>
Date: Sunday, October 21, 2012 3:33 PM
To: Wendy Murphy <>, "" <>
Subject: Re: FERPA does not compel secrecy about sexual violence policies anymore than policies on murder

Wendy and all,

Please explain further to the list serve.

 

Your message:  "FERPA does not compel secrecy about sexual violence policies anymore than policies on murder."

 

School's message (which is often used by schools in s.a. cases):  "The Family Educational Rights and Privacy Act (FERPA) prohibits the University from disclosing details about the handling of allegations of sexual assault involving a student."

 

What exactly can schools disclose under FERPA?

Thanks!

Terri Spahr Nelson