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FERPA Compliance and Sexual Assault

Posted by On Thursday, June 2, 2016

The administrative burden placed on colleges and universities across the nation by the Family Educational Rights and Privacy Act (FERPA) “must not be understated,” and FERPA has been described this way: “the law was enacted hastily, poorly written, and, from its adoption, has begged review.” Salzwedel, M. & Ericson, J. “Cleaning Up Buckley.” Wisconsin Law Review, 2003: 1053, 1065. The stakes are also high: federal funds may be withdrawn from a school that has a “policy or practice” of releasing a student’s education records.

A recent case emphasizes the complexity of applying FERPA regulations and the importance of FERPA training. In an op-ed piece in the New York Times Magazine, Jon Krakauer, author of Missoula: Rape and the Justice System in a College Town, described his lawsuit against Montana’s Commissioner of Higher Education to force the release of education records from a disciplinary proceeding involving sexual assault allegations against a University of Montana football player.

But the issues involved are broader than Krakauer’s research for a new book. The US Department of Education filed an amicus brief in the Krakauer case to clarify FERPA principles at issue in the case, and journalists and news media organizations filed an amicus brief to defend freedom of the press.  Krakauer’s lawsuit challenges the school’s interpretation of FERPA — the University claims FERPA prohibits disclosing the football player’s private education records. Krakauer’s case was heard by the Montana Supreme Court on April 27th and the court’s decision will provide a rare high court interpretation of the labyrinth of FERPA regulations which school administrators, faculty, and staff must wade through.

The Department of Education’s amicus brief also argued that is has a “strong interest” in UM’s compliance with Title IX, noting UM’s 2013 resolution agreement with the Office for Civil Rights. In its 2014 Q&A on Title IX as well as the 2001 Revised Sexual Harassment Guidance, the Department pointed out the relationship between FERPA and Title IX regarding information about the outcome of a sexual harassment complaint and the due process rights of accused individuals.

Together with Title IX training, educating employees about basic FERPA principles allows them to recognize FERPA issues when handling education records, protecting student privacy rights, and helping schools comply with both their FERPA and Title IX obligations in a wide range of school activities.

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