In this week’s roundup, confusion and guidance around confidentiality and the University of Texas system launches a study of campus sexual assault across all 13 of its campues.
On Tuesday, August 18th, The Department of Education’s (ED) Chief Privacy Officer, Kathleen Styles, requested input from the higher education community on protecting student medical records. The request, which was published on “Homeroom,” the ED’s official blog, accompanied a draft Dear Colleague Letter (DCL) addressing an exception under FERPA that allows a school to access a student’s medical records without consent if there is litigation between the student and the school.
The draft guidance follows a controversial incident earlier this year: after a student sued her university for allegedly mishandling her report of being raped, the university gave her therapy records to its attorneys to help defend itself against her lawsuit. One commentator argued the university’s decision — and the FERPA exception that allowed them to make it — left students “stuck between unaffordable therapy in a safe space and free therapy provided by an institution they are unsure they can trust.” The draft DCL offers guidance for these situations,
…without a court order or written consent, institutions that are involved in litigation with a student should not share student medical records with the institution’s attorneys or courts unless the litigation in question relates directly to the medical treatment itself or the payment for that treatment, and even then disclose only those records that are relevant and necessary to the litigation.
Public input is welcomed until October 2nd, and anyone interested can email comments to FERPA.Comments@ed.gov.
What’s controversial about confidential advisers? According to some experts, advocates employed by a college may have a conflict of interest when counseling alleged victims, rendering them unable to give students unbiased support. And without the protection of a legal privilege, advisers could be subpoenaed as part of a criminal investigation or by lawyers of accused students to disclose their communications with the alleged victim. Or, when helping a student move to a new dorm, information could be given to an employee who is required to report it to the Title IX coordinator. United Educators’ general counsel says simply hiring an adviser for every campus “is likely to cause more confusion and conflicts.”
However, as the White House Task Force Report pointed out, victims and survivors of sexual violence are more likely to seek help, rather than stay silent, if they have a place to go for confidential advice and support. The University of California has at least one adviser on each of its ten campuses. In fact, the UC Santa Barbara campus has five staff members to support victims through a campus or criminal investigation, or accommodations in academic and living situations, and the number of students seeking services from its confidential-advising program tripled after they increased the number of advisers.
California’s “Yes Means Yes” law requires campuses to have a confidential advising office for survivors. New York’s “Enough is Enough” law and the Campus Accountability and Safety Act now pending in the U.S. Senate both require confidential advisers on every college campus. Given the positive impact that a confidential adviser has on survivor reporting and recovery, it is likely we will see legislative action to protect advocate confidentiality.
The University of Texas (UT) is undertaking a $1.7 million study of campus sexual assault across all 13 of its campuses. Led by William McRaven, the chancellor of the UT system, the project is expected to take multiple years and will include an online student questionnaire, faculty and staff focus groups, and longitudinal studies of student experiences. This study is one of many sexual assault Campus Climate Survey projects sweeping the nation’s higher education institutions.
McRaven, who has been in his current role since January, is comparing his experience working with UT to his previous extensive experience with the military. McRaven is a retired four-star Navy admiral and a long-time Navy SEAL. He is most known for his involvement in the operation that resulted in the death of Osama bin Laden in 2011. While in the Navy, McRaven says that he knew sexual assault was a problem, but until he conducted a survey of personnel, the extent and breadth of the problem were unknown. “Frankly, I was stunned by the results,” he said. “The problem was a lot more entrenched, and a lot broader, than I thought it was.”
This experience has helped him realize that “I don’t have enough data just yet” to understand how big the sexual assault problem is in the UT system. This project will happen in conjunction with the UT-Austin campus taking part in the AAU survey, for which aggregate results are expected to be published this Fall.