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Month: November 2013

Privacy vs. Safety: Does FERPA Apply to Sexual Assault Cases?
Posted by On Monday, November 25, 2013

Navigating the muddy waters between protecting student privacy and addressing complaints of sexual misconduct still causes confusion. Does FERPA prohibit disclosure of information about sexual assault cases? As one expert points out, many schools perceive a conflict between the confidentiality of student records under the Family Educational Rights and Privacy Act (FERPA) on the one hand, and the competing rights of sexual assault victims and other students under Title IX and the Clery Act on the other.

While this post is only intended to address whether FERPA prohibits disclosure of information about peer sexual assault complaints, a few basics are in order. As the Department of Education explained in a 2006 interpretation letter, FERPA protects “education records” maintained by or for the school which are tangible documents (including media and electronic data). FERPA does not, however, protect personal knowledge or observations:

FERPA applies to the disclosure of tangible records and of information derived from tangible records … As a general rule, information that is obtained through personal knowledge or observation, and not from an education record, is not protected from disclosure under FERPA.

Therefore, even if an education record exists containing the same information, FERPA doesn’t protect the confidentiality of information independently obtained from personal knowledge or observations.

In addition, the education records must contain “information directly related to a student” — in other words, they must directly or indirectly identify the student. So far this seems pretty straightforward. However, the various exceptions to FERPA protection when sexual assault is involved seem to cause confusion.

Starting with a clear exception, schools may disclose — without the accused student’s consent — the final results of a disciplinary proceeding involving alleged acts that, if proven, would constitute a violent crime or non-forcible sex offense:1

  • to anyone if the alleged perpetrator is found to have committed the offense
  • only to the alleged victim if the accused is not found responsible. In this case the victim must be told not to disclose the outcome to a third party

The result of a disciplinary proceeding is not final until after any appeals. Once the result is final the school may disclose the student’s name, the offense, and any sanction imposed, as indicated above. Another slightly more confusing exception allows disclosure of the investigative reports and other records2of campus police and security units involving sexual assault complaints if they are created for a “law enforcement purpose.” Whether the records qualify for this exception depends on (1) who created the records, (2) why they were created, and (3) who maintains them.

Under FERPA, if the records are created “exclusively for the purpose of a possible disciplinary action against the student” those records would be “education records.” However, the ED Secretary has said that it “expects such occasions to be very rare, especially when incidents involv[e] criminal conduct by students at postsecondary institutions.” Thus, if a student reports a sexual assault to campus police and other security staff their records are probably not protected from disclosure by FERPA.

A couple of cases illustrate how FERPA has been misapplied at the expense of student safety. Last year Oklahoma State University did not alert campus or local police when a victim reported to Student Affairs that he’d been molested. Over the next month the accused molester committed more assaults. Finally, a student newspaper reporter received an anonymous tip and contacted police, which led to the perpetrator’s arrest. In September, Nathan Cochran pled guilty to three criminal counts of sexual battery for fondling and performing oral sex on other male students while they slept in his fraternity house. Cochran was suspended from OSU for three years.

When the OSU victim first came forward, no tangible education record existed relating to the accused student. LeRoy Rooker, the ED’s chief FERPA enforcer for 21 years, said “Just forget FERPA at that point.”

And even if an education record existed a third exception, FERPA’s health and safety exception likely applied. Again, Rooker provides guidance in ED’s 2006 interpretation letter:

This 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) 99.36.3

In another case, Swarthmore College’s disciplinary proceeding found the accused student responsible but the victim felt the sanction did not protect her or other students in part because the accused’s identity was never revealed by the school. Though her assailant was found responsible for rape and suspended, he will be allowed to re-enroll after she graduates. In the meantime, his suspension wasn’t made public so he continues to visit the campus and present a safety risk.

When Liz Braun, Dean of Students at Swarthmore, asked for student feedback about the school’s College Judiciary Committee process, the victim described the CJC process as “unnecessarily torturous.” She asked a valid question in her response to Dean Braun: “Should the outcomes of CJC hearings and appeals be made public with identifiable names of perpetrators?” In fact, the accused student’s name could be made public if the CJC’s final decision found him responsible. This would not violate FERPA and could help protect other students.

Responding to a question about obtaining information from schools regarding sexual assaults against college students, ED Secretary Arne Duncan encouraged journalists to seek assistance from Department of Education staff if they encounter schools misapplying FERPA. While participating in a conference call organized by the Education Writers Association, Duncan stated, “Where districts or schools are — I’m not saying they are — but if they’re sort of hiding behind FERPA and not sharing simple information, we’re happy to try and assist there.”

A journalist from Student Press Law Center said she plans to follow up with ED’s chief privacy officer, Kathleen Styles. We’ll be looking for further guidance on this issue but hope that in the meantime this post provides some explanation of what is and isn’t a legitimate use of FERPA when it comes to protecting the privacy of students accused of committing sexual assault.


1. While this post focuses on sexual assault complaints, this exception to FERPA protection covers a number of violent crimes and non-forcible sex offenses listed in 34 CFR §99.39 and 34 CFR §99.31(13)and (14) covers the conditions that allow disclosure of information without consent.

2. 34 CFR §99.8(b)(1) defines “law enforcement records” as “records, files, documents, and other materials that are — (i) Created by a law enforcement unit; (ii) Created for a law enforcement purpose; and (iii) Maintained by the law enforcement unit.” While FERPA allows disclosure, the confidentiality of records maintained by a school’s security staff may be restricted by the school’s policies or applicable State law.

3. 34 CFR §99.31(10) provides that prior consent not required to disclose information where “The disclosure is in connection with a health or safety emergency, under the conditions described in §99.36.”
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What Happens in College Doesn’t Always Stay in College
Posted by On Wednesday, November 20, 2013
Photograph courtesy of Amanda Berg

While a junior at the Rochester Institute of Technology, Amanda Berg noticed her female friends trying to match men drink for drink at parties. The trend bothered her and she was interested in exploring it further. So on Halloween, Berg decided to bring her camera to a party, and instead of knocking back drinks, she snapped photos.

The one-night experiment developed into a long-term project, and Berg continued to document her female friends while they partied. The fruit of this project, Berg’s photo-essay, “Keg Stand Queens: Binge Drinking among College-Aged Women,” explores “the complex relationship women undergraduates have with alcohol.”

Berg has plenty of images of binge drinking that we might expect from a photo-essay on college partying: students shotgunning beers, another chugging from a bottle of booze as she flips off the cheering crowd encircling her, and a young woman throwing up in the bathroom after partying too hard.

Other photos show the way drinking insinuates itself into the more mundane aspects of student life like one photograph of a half-empty bottle of Jack Daniels on a bathroom counter, nestled among makeup, toothpaste, and combs.

In some ways, it is this last photo that is the most troubling. It suggests the way drinking becomes as routine as brushing your teeth or combing your hair. Indeed, harm-prevention programs usually educate students about the dangers of binge drinking, but rarely do they mention the dangers of daily drinking.

The Importance of Weekly Limits

The National Institute on Alcohol Abuse and Alcoholism (NIAAA) defines moderate drinking by both daily and weekly limits. For men, those limits are no more than four drinks a day or 14 drinks in a week. For women, it’s three drinks a day or seven drinks in a week. Daily limits protect people from acute risks such as alcohol poisoning. Weekly limits, meanwhile, protect them from long-term risks associated with alcohol such as certain types of cancer.

While alcohol programs generally educate students about daily limits and the dangers of binge drinking, most don’t mention weekly limits, even though keeping within both limits is important to students’ health.

In a recent study published in Alcoholism: Clinical and Experimental Research, Bettina Hoeppner and her colleagues found that 50% of college women and 45% of college men exceeded the NIAAA’s weekly limits at least once in their first year of college. The findings reveal a hole in some campuses harm-reduction efforts. By failing to educate students about weekly limits, Hoeppner argues, schools may be missing an important chance to have a long-term impact on students’ lives, especially young women.

In fact, recent data show that while young adults binge less after college graduation, they continue to drink just as frequently if not more. “[T]his raises the possibility,” Hoeppner speculates, “that the weekly limits become more relevant after leaving the college environment when weekly volume is less likely to be driven by heavy episodic drinking.”

Breaking the cycle

College students are still more likely to exceed daily than weekly limits. Indeed, according to Hoeppner’s data, almost no students exceeded weekly limits without also exceeding daily limits. Furthermore, the risks of binge drinking (blackouts, injuries, alcohol poisoning) are more acute than the potential long-term effects of regularly exceeding weekly limits. But, as Hoeppner’s research suggests, students also need to think about how their drinking fits into a bigger picture.

Just as colleges and universities educate students for professional life after graduation, schools need to consider how their harm-reduction strategies promote healthier lifestyles at college and beyond.
Telling students that alcohol abuse is just a “college” problem reinforces the perception that there aren’t long-term consequences to their behavior: “What happens at college stays at college.”

Failing to warn students about the long-term consequences of heavy drinking not only lets women down, it lets all students down. Education programs prepare students for life, not just college.

The final image in Berg’s photo-essay is a young girl practicing flip cup. She is surrounded by the detritus of a wedding celebration. Empty cups and containers are strewn across the table. In the distance, just out of focus, lies a discarded silver sandal. As Berg told Slate Magazine, “It seems like the end is the beginning, and it just goes on.”

Works Cited

Hoeppner, B.B., Paskausky, A.L., Jackson, K.M., Barnett, N.P. (2013) “Sex Differences in College Student Adherence to NIAAA Drinking Guidelines,” Alcoholism: Clinical and Experimental Research, 37, 1779-1786.

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Prevention Must Include the LGBTQ Community
Posted by On Monday, November 18, 2013

Recent research suggests that members of the LGBTQ community are just as—if not more—likely to be victims of sexual violence as their heterosexual peers. The Centers for Disease Control and Prevention 2010 Findingson Victimization by Sexual Orientation found that nearly half of lesbian women, four in ten gay men, half of bisexual men, and three-quarters of bisexual women have been victims of sexual violence in their lifetime. Such alarming figures make it clear that sexual assault is a problem that affects students of all sexual orientations. Moreover, the often marginalized position of the LGBTQ community compounds and complicates numerous issues faced by survivors of sexual assault.

For example, as we’ve written about in the past, it’s not unusual for survivors to be discouraged from reporting by the fear that they will encounter hostility on the part of law enforcement and other first responders. The fear of hostility motivated by homophobia compounds the problem for members of the LGBTQ community. For some LGBTQ survivors, reporting a sexual assault could mean “outing” themselves before they’re prepared to reveal their sexuality. There’s also the fear that, because the conventionally accepted narrative of sexual violence focuses on heterosexual assaults, an assault involving members of the LGBTQ community will be sensationalized.

Another ugly fact is that homophobia not only contributes to underreporting of sexual assault in the LGBTQ community, but can also motivate assaults against members of that community. According to theUniversity of Minnesota Morris Violence Prevention Center, sexual assault is often used as a weapon by those who wish to humiliate LGBTQ people for their sexual orientation, or (especially in cases where a lesbian woman is assaulted by a straight man) somehow “cure” them of their orientation. The unhappy overlap between hate crimes and sexual assault is especially important for administrators to be aware of in light of the Campus SaVE Act’s requirements for schools to include hate crimes based on sexual orientation or gender identity in their annual security reports.

These issues make clear the importance of harm-prevention programming that encompasses the entire spectrum of a campus population. The current conversation about sexual assault on college campuses is, of course, incredibly important and a welcome change from decades of silence on an issue that won’t go away unless it’s addressed directly. But does the conversation campuses are having about sexual violence include all of the students affected by the problem? A conversation about sexual violence on college campuses that revolves around or even assumes scenarios involving heterosexual male perpetrators and heterosexual female victims fails to address the needs of survivors whose experiences fall outside the range of that common but by no means universal experience.

Administrators need to consider programming designed to help all students by covering the unique problems faced by members of the LGBTQ community. By bringing these issues into the conversation, schools encourage students to report sexual assault, regardless of their gender, race, or sexual orientation.  Inclusive and effective prevention training must recognize the grim but important truth that sexual assault can affect any student on campus.

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Do You Know Your Campus’s Sexual Assault Red Zones?
Posted by On Monday, November 11, 2013

Most schools concentrate their substance-abuse and sexual-violence prevention efforts during the first six weeks of the academic year, a period called the “red zone.”  First-year women are believed to be at the highest risk for sexual assault during these first six weeks because they are unfamiliar with college social life and thus vulnerable to sexual predators.

Though research does show that first-year women are at greater risk for sexual assault than other undergraduates, no studies (that we’re aware of) have shown that the first six weeks of school are the highest-risk period for them.

Researchers, however, have found evidence for other “red zones.” These red zones, researchers suggest, are particular to schools and are the result of local factors, such as rush periods, big games, or other important social events.

In a 2008 study, William Flack and his colleagues found that second-year women at one college were at a higher risk for sexual assault between the end of the first month of school and fall break.  Flack tentatively attributed this spike in risk to the fact that many second-year women were pledging local sororities before fall break. The high number of parties and heavier drinking during pledge week, Flack suggested, put the young women at greater risk for sexual assault.

Flack concluded: “Risk for unwanted sex associated with the academic calendar year may have more to do with the available range of types of social events in which students engage…the contexts within which those events take place, and the sometimes intense pressures on students to conform to campus social mores, than with students’ inexperience of college social life per se.”

Other research, meanwhile, has found that the risk of sexual victimization is evenly spread out across the school year (Fisher et al., 94-95).

Taken together, this research suggests that schools should consider spacing their prevention effects across the entire first year instead of frontloading prevention efforts in the first six weeks of school.

To determine the timing of the programming, administrators might identify major campus events that put students at greater risk for sexual violence or substance abuse and then schedule programming around those events.

Schools could also develop follow-up programming and re-orientations for students in their second, third, and fourth years. These follow ups could present students with new information that is more relevant to their experience — such as upcoming rush or pledge weeks — thus allowing students to continue a discussion that often seems to end after first-year orientation. After all, though women may be at a relatively lower risk of sexual assault later in their college careers, programming should be addressed to potential bystanders and perpetrators as well.

Indeed, spreading programming out isn’t just consistent with research about red zones, it’s also good pedagogy. Spacing any kind of practice across time (rather than massing it in one long event) promotes better long-term retention of material.

Sexual violence is not just a problem in the first six weeks of school and it’s not just a first year problem. All students are responsible for preventing sexual violence.

Further Reading

Fisher, B.S., Cullen, F.T., Turner, M.G. (1999) “Extent and Nature of the Sexual Victimization of College Women: A National-Level Analysis.” Washington, DC: Department of Justice, National Institute of Justice.

Flack, W.F., Jr., Caron, M.L., Leinen, S.J., et al. (2008) “‘The Red Zone’: Temporal Risk for Unwanted Sex Among College Students,” Journal of Interpersonal Violence, 23, 1177-1196.

Kimble, M., Neacsiu, A.D., Flack, W.F., Jr. and Horner, J. “Risk of Unwanted Sex for College Women: Evidence for a Red Zone.” Journal of American College Health, 57, 331-337.

Thalheimer, Will. (2006) Spacing Learning Events Over Time: What the Research Says. Work-Learning Research, Inc. Accessed 18th November 2013 <http://www.work-learning.com/catalog.html>

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Campus Climate Surveys and the “Information Problem”
Posted by On Wednesday, November 6, 2013

Education surveys are nothing new. In fact, the Department of Education was established in 1867 to collect “such statistics and facts … as shall … promote the cause of education throughout the United States.”1 In his 1860 education treatise, Herbert Spencer said that asking people how they “think, feel, and act under given circumstances” to solve social problems was a self-evident conclusion: “Society is made up of individuals … and therefore, in individual actions only can be found the solutions of social phenomena.”2

Fast forward to the 21st century and schools are using student surveys to help them address the epidemic of sexual assault affecting college women. In a previous post we talked about the University of Montana’s “rape-tolerant campus” and its agreement with the U.S. Department of Education to take steps to change the campus climate.

On October 29, 2013, the University of Montana used Amazon gift cards to entice students to complete an annual safe campus survey on their knowledge, attitudes, program use, and experiences. The survey will help UM develop “effective programs and [create] positive change in sexual and interpersonal violence,” said UM psychology professor Christine Fiore. This annual survey is part of the “blueprint” for Title IX compliance that resulted from UM’s settlement agreement with the ED. The blueprint also includes educating students, faculty, and staff on what is sexual misconduct and how to file complaints.

Other investigations by the ED’s Office of Civil Rights call for annual student surveys. The State University of New York reached a settlement agreement with ED on October 31, 2013, and will begin conducting annual campus climate assessments to help improve sexual misconduct policies and procedures at its twenty-nine campuses. In May 2013, the Yale News reported that the school’s second “campus climate assessment” found, based on feedback from more than 300 students, it was making progress in addressing sexual misconduct issues.

In addition to a federal investigation, there is the risk of expensive Title IX liability to victims. When schools are faced with six- and seven-figure settlements, why does it take a federal investigation to get to the root of the problem? One possible explanation is what legal scholar Nancy Chi Cantalupo calls an “information problem” about sexual assault and how that impacts a school’s reputation for safety.

According to Cantalupo, many schools are reluctant to confront the problem of sexual violence precisely because helping victims and punishing perpetrators requires reporting. Increased reporting drives crime statistics up and makes the school look like a dangerous place to send your children. On the other hand, when victims are discouraged from reporting crimes statistics go down, making the school look safer. Thus, schools have an incentive to discourage reporting to protect their reputations.

However, sociologists and criminologists who study campus violence suggest that ignoring the problem feeds a rape-tolerant culture that leads to higher rates of sexual assault.3 Fortunately, these tragic consequences are turning into stricter enforcement and grassroots action: federal complaints by sexual assault victims are increasing, Title IX enforcement is being taken more seriously,4 and student organizations like Know Your IX are focusing national attention on the problem.

Cantalupo argues that annual student surveys provide more accurate information on the incidence of sexual violence, which helps schools turn their policies, procedures, and education programs into meaningful change. Therefore, Cantalupo recommends that all schools require students to respond to a campus climate survey before they can graduate or register for classes.

Tucker Reed has filed two federal complaints over the University of Southern California’s handling of her sexual assault complaint. She agrees that exit surveys of graduating seniors would not only be a better way to find out how many students were sexually assaulted while in college, but could also “pinpoint which programs are working and which aren’t.”

Student surveys provide a direct source of data that inform a school’s Campus SaVE Act education programs, and confront the sexual assault problem with a targeted approach to reducing the rate of sexual violence in all schools, not just those featured in the latest headlines for another federal investigation.


1. The History and Origins of Survey Items for the Integrated Postsecondary Education Data System. Report of the National Postsecondary Education Cooperative (2011).
2. Spencer, H. Education: Intellectual, Moral, and Physical, p. 70 (London: D. Appleton and Company 1860).
3. Cantalupo, N. Burying Our Heads in the Sand: Lack of Knowledge, Knowledge Avoidance, and the Persistent Problem of Campus Peer Sexual Violence (2011) 43 Loyola Univ. Chicago L.J. 205, 218.
4. Cantalupo says, “In fiscal year 2009, OCR had 582 full-time staffers—fewer than at any time since its creation. And it received 6,364 complaints, an increase of 27% since 2002,” citing Lax Enforcement of Title IX in Campus Sexual Assault Cases: Feeble Watchdog Leaves Students at Risk, Critics Say, Center For Public Integrity (Feb. 25, 2010).

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