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

["Di O'Neill, DSW" <>]

Dear Brett,
Thanks for the prompt and helpful response. 
Sincerely,
Di O'Neill

Di O'Neill, DSW, LCSW
Counseling and Psychological Services
University of Pennsylvania
3624 Market Street
First Floor , West
Philadelphia, Pa
215-898-7021

________________________________________
From: Brett Sokolow 
[]
Sent: Monday, March 02, 2015 9:35 PM
To: 

Subject: Re: Raped on Campus? Don¹t Trust Your College to Do the Right Thing 
- Commentary - The Chronicle of Higher Education

To those of you reading this article tonight,
http://chronicle.com/article/Raped-on-Campus-Don-t-Trust/228093/?cid=pm&utm
_source=pm&utm_medium=en, I¹d like us to consider that the author, an
obviously smart and accomplished professional (law professor, J.D.,
Ph.D.), may not know FERPA at the level of some of us who work with it
every day.  Her thesis is that UO had a right under FERPA to access a
student¹s counseling records because the student had sued UO.  I read
FERPA as defining itself as the governing law, and then defining itself to
not apply to counseling records.  See specific provision below.  Thus,
counseling records are not education records.  The lawsuit exemption in
FERPA clearly applies only to education records.  Not only does it seem
that FERPA did not give UO the right to access these records, but UO
likely breached its own privacy rules and its informed consent to do so.
Why do I write about this?  The author warns students away from counseling
centers as a result of the right of administrators to access counseling
records. What a horrible conclusion.  For the record, I believe this is
wrong.  Administrators cannot and should not access a student¹s counseling
records without permission.  Doing so is highly likely a violation of a
student¹s contractual and privacy rights.  ATIXA has called on the author
to retract or correct the article before it does lasting damage.

(Authority: 20 U.S.C. 1232g(b)(3), (b)(5))
Education records. (a) The term means those records that are:
(1) Directly related to a student; and
(2) Maintained by an educational agency or institution or by a party
acting for the agency or institution.
(b) The term does not include:
(4) Records on a student who is 18 years of age or older, or is attending
an institution of postsecondary education, that are:
(i) Made or maintained by a physician, psychiatrist, psychologist, or
other recognized professional or paraprofessional acting in his or her
professional capacity or assisting in a paraprofessional capacity;
(ii) Made, maintained, or used only in connection with treatment of the
student; and
(iii) Disclosed only to individuals providing the treatment. For the
purpose of this definition, ³treatment² does not include remedial
educational activities or activities that are part of the program of
instruction at the agency or institution; and
(5) Records created or received by an educational agency or institution
after an individual is no longer a student in attendance and that are not
directly related to the individual's attendance as a student.
(6) Grades on peer-graded papers before they are collected and recorded by
a teacher.



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


President & CEO, The NCHERM Group LLC <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>
Publisher, Student Affairs eNews <www.studentaffairsenews.com>

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On 3/2/15, 9:05 PM, "Di O'Neill, DSW" 
<>
 wrote:

>
>Subject: Raped on Campus? Don¹t Trust Your College to Do the Right Thing
>- Commentary - The Chronicle of Higher Education
>
>Hello SAPC members,
>Can anyone shed light on the assertions made in the article below
>concerning client records, sexual assault, and if / when Universities
>ever have access to student counseling center records?
>Thank you in advance for your expertise and support!
>
>
>http://chronicle.com/article/Raped-on-Campus-Don-t-Trust/228093/?cid=pm&ut
>m_source=pm&utm_medium=en
>
>
>Di O'neill, DSW, LCSW
>Counseling and Psychological Services
>University of Pennsylvania
>3624 Market Street
>First Floor, West
>Philadelphia, Pa
>215-898-7021
>
>
>
>
>http://chronicle.com/article/Raped-on-Campus-Don-t-Trust/228093/?cid=pm&ut
>m_source=pm&utm_medium=en
>
>
>Sent from my iPad