When Treon Harris, the starting quarterback for the University of Florida’s football team, was accused of sexual assault this month, the university did something unusual: It announced the accusation publicly the very next day.
Colleges are not known for being open to sharing information about sexual assaults or anything else involving the bad behavior of students. Such matters, they often say, are cloaked by a federal law—the Family Educational Rights and Privacy Act of 1974, which prohibits educational institutions from releasing "education records" that reveal the identity of an individual student.
The university may have felt that it had few other options at the time: Law-enforcement records from the campus police are among the few clear exceptions to the federal privacy statute, which is commonly known as Ferpa.
Otherwise, that statute is very broad, and it comes with relatively little guidance from the U.S. Department of Education.
"The term ‘education record’ applies to much more than just academic records such as grades. It encompasses nearly everything on campus," says Steven J. McDonald, general counsel at the Rhode Island School of Design, who has written often on the topic.
The broad nature of the law, however, has created a lot of misunderstanding among higher-education leaders, who may try to use it to block access to not only information about incidents of sexual violence, but also cases of academic fraud, notes from a student-government meeting, and even student emails about a university's fight song.
In the context of sexual assaults, the use of the privacy law has angered activists who blame colleges for wielding Ferpa like an all-purpose shield against outside inquiry, even when a student’s privacy is not at risk.
Ferpa Follies
Journalists and other advocates for more transparency in higher education have long clashed with college lawyers over what is and isn’t covered by the privacy law.
Many colleges use it tactically to hide embarrassing information from the public or to avoid accountability, says Welch Suggs, an associate professor of journalism at the University of Georgia. (Mr. Suggs is also a former reporter for The Chronicle.)
"When you start talking about sexual assaults, and how badly some of them have been handled, you might understand why universities would not want them discussed publicly," he says.
Questionable citations of Ferpa go beyond the specifics of sexual-assault accusations. The Student Press Law Center maintains a blog that fact-checks how some colleges use, or abuse, the privacy law. For example, California’s College of the Desert denied news-media requests to reveal whether it had expelled a student who pleaded guilty in state court to two counts of sexual battery. "All of our students’ privacy rights continue to be protected by Ferpa," explained a college official.
The law center rated that response as an incorrect application of the law, with the information about the student’s status "not protected by Ferpa at all."
One case that the law center rated "a pretty legitimate use of Ferpa" involved allegations of academic fraud against a football player at the University of Notre Dame. The player’s father complained that the university had not given him enough information about the situation.
In that case, the son would have to give his consent for the university to release the information, the law center concluded.
There’s also debate about the penalties colleges face if they run afoul of Ferpa. Often higher-education officials warn that violating the federal law will result in their loss of federal financial aid.
But even if the Department of Education determines that a college has violated Ferpa, there are virtually no consequences, says Frank D. LoMonte, executive director of the Student Press Law Center, which advocates for a narrower definition of what is covered by the law. "Zero times in the history of Ferpa," he says, "has a college been penalized for violating the law."
"If the department found a violation, they would tell the college to stop doing that," Mr. LoMonte says. The only way a college might actually be punished is if it wrote back to the department and said "go to hell," he says.
Mr. McDonald, the Rhode Island School of Design lawyer, disputed that the law is toothless. While the ultimate penalty has never been applied, he says, the threat of it is enough to force voluntary compliance.
The Student Press Law Center's real complaint is that "it doesn't like the scope of Ferpa," Mr. McDonald says, "but that’s a policy issue that should be addressed to Congress."
Delayed Responses
You don’t have to look very hard to find examples of colleges that responded very differently from the University of Florida when their athletes were charged with sexual assaults. In March three basketball players at the University of Oregon were accused of sexually assaulting a victim after a game.
The police department in Eugene, Ore., investigated the accusations, and the university’s police department and administration were notified of the alleged assaults. But for two months the university made no public statements and even allowed the athletes to continue playing on the team.
In May the university finally acknowledged that the players had been accused of sexual assault and suspended them from the team—nearly a month after the local district attorney announced that he had insufficient evidence to prove the charges beyond a reasonable doubt and therefore would not prosecute the case. In June all three were expelled from the university.
But even with a public police report on the case, the university’s president at the time, Michael R. Gottfredson, initially declined to discuss Oregon’s response to the accusations. He said in a written statement that "federal laws that protect the privacy of all students preclude the university from commenting about students."
Many questions also remain about the case involving Florida State University’s star quarterback, Jameis Winston, who was accused of a sexual assault in December 2012. Although Florida State's police force responded to the incident, the university took no disciplinary action and did not even acknowledge the alleged assault until the Tampa Bay Timesreceived a copy of the incident report from the Tallahassee Police Department, in November 2013.
It’s not clear whether either Oregon or Florida State has violated the federal privacy law.
Incident reports from campus police officers are exempted from the law’s protections. But a record of a police action that is given to a campus administrator for disciplinary action against a student would fall under Ferpa’s restrictions, Mr. McDonald says. If that student were found to have committed an act of violence under the college’s disciplinary process, that information would then be open to the public, he says.
The record of an external police force, such as an arrest by a local police officer, would be open to the public because it was not created by the college. That same record, however, could not be revealed by campus officials after they obtained it, Mr. McDonald says.
Under Pressure
Florida chose to provide limited information on Mr. Harris’s case, which was later dismissed when the accuser recanted her accusation. But the university has not disclosed whether it has completed its own investigation or conducted disciplinary procedures against Mr. Harris.
The question now is whether the university’s response will become the new norm or remain an exception. Will pressure from activists, the news media, and the Education Department push other colleges to cast aside concerns about Ferpa and be more transparent in disclosing cases of sexual assault?
There is at least some evidence that colleges are becoming more forthcoming, at least in cases involving high-profile students such as Mr. Harris. The University of Kentucky recently took the same approach when one of its football players was accused of committing a sexual assault.
"The legal charges filed in this case as well as the disciplinary action taken by the football team were both public and happened at about the same time," says Jay Blanton, a spokesman for the university, by email.
But even with increased pressure from the federal government, there is little chance that colleges will feel the need to be more open about accusations against less-well-known students, says Mr. LoMonte of the Student Press Law Center.
"You wouldn't have seen such intense media pressure on a university to disclose details of a case against a member of the chess team," he says.
Forcing colleges to be more open in how they deal with sexual violence would require policy changes outside of Ferpa, says Michele Landis Dauber, a professor of law at Stanford University, because most incidents of sexual assault on campuses are never reported to the police and don’t involve prominent athletes.
While colleges are required to report the number of rapes that occur on the campus, they should also be required to report the outcome of disciplinary actions concerning those incidents, she says.
But the recent examples at the Universities of Florida and of Kentucky are likely to remain exceptions, says Ms. Dauber, who led Stanford’s two-year effort to revise its sexual-assault policies beginning in 2011.
"I’m skeptical," she says, "how much of this is about protecting women versus protecting the money stream from big-time athletics."
Read more at The Chronicle of Higher Education: http://chronicle.com/article/For-Colleges-Student-Privacy/149553