There is a disturbing story out of Oklahoma State University where university officials failed to report sexual assault allegations to police out of a bizarre fear that they would be violating federal guidelines over the confidentiality of student grades. Former Oklahoma State student Nathan Cochran, 22, was accused of the assaults but university lawyers and staff believed that reporting the allegations would require disclosure of educational records in violation of the Federal Education Rights Privacy Act.
FERPA does not bar universities from reporting alleged crimes to police for the investigation. It actually allows for disclosure to other students of the results of school investigations. Other universities expressly make that exception for criminal conduct clear and express that on their websites. The law itself states that even accusers may be given such information:
(A) Nothing in this section shall be construed to prohibit an institution of postsecondary education from disclosing, to an alleged victim of any crime of violence (as that term is defined in section 16 of title 18), or a nonforcible sex offense, the final results of any disciplinary proceeding conducted by such institution against the alleged perpetrator of such crime or offense with respect to such crime or offense.
(B) Nothing in this section shall be construed to prohibit an institution of postsecondary education from disclosing the final results of any disciplinary proceeding conducted by such institution against a student who is an alleged perpetrator of any crime of violence (as that term is defined in section 16 of title 18), or a nonforcible sex offense, if the institution determines as a result of that disciplinary proceeding that the student committed a violation of the institution’s rules or policies with respect to such crime or offense.
Even without such a provision, it would be absurd to believe that such a federal law could reasonably be read to preclude police reporting of possible crimes. What is particularly striking is that university officials would consider the threat of being found in violation of a federal educational standard to outweigh the need to report a pattern of alleged sexual assaults. It is true that the range of material that can be disclosed to police under FERPA has been a controversy. It was the subject of a letter in 2003 from the DOE. However, none of this concerns the right of the university to call police on the reporting of a possible crime. It only concerns the degree of material that can be voluntarily disclosed. The police can always seek a court order for information, which the university will have to comply with or appeal within the legal system.
Cochran now faces four counts of sexual battery involving the groping of female students as they slept. University officials learned of the assaults on November 12th but did not contact police. Instead, the university held “student conduct hearings” to suspend Cochran. That is particularly bizarre in terms of legal analysis since it would mean that there were no covered educational records at the time of the allegations, even if you believed Congress did not want sexual assaults to be reported to police.
It was a reporter from OSU that triggered a police investigation on December 7 after contacting police. That was almost one month after the alleged assaults.
While the independent counsel for the university found that OSU’s interpretation (presumably done with the help of counsel) was wrong, James Sears Bryant, the Board of Regents’ independent counsel, found it was done in good faith and understandable. That would suggest that no one will be disciplined for this ridiculous reading of the law. I do not see any reasonable basis for this decision in federal law or more generally academic ethical codes. In that sense, I disagree with Bryant that “[l]ike other areas of law, there’s a lot of room for interpretation.”
The Supreme Court has actually discouraged overbroad reading of FERPA. In Owasso Independent School District v. Kristja Falvo, the Court held that peer grading was not educational information for purposes of FERPA since “peer grading” involves one student scoring/grading the work of another student. It is not information created or “maintained” by the educational institution or an agent of the institution.
The question is whether any of the alleged victims can sue. Because of the bizarre position of OSU, this person was not arrested for weeks. The emotional distress caused by such a failure could be the basis for a lawsuit but it would have difficult elements. For example, the students could have gone directly to the police. Moreover, it is not clear how significant damages would be in such a case for the delay. In my view, there is not a scintilla of support for claiming that OSU was barred from reporting the allegations immediately to police. Indeed, the university is under legal obligations to do so for the protection of its student body.