Oklahoma State University Did Not Report Alleged Sexual Assaults Out Of Fear They Might Be Accused Of Violating The Student’s Privacy Protections

w300-c_6fff967459ab6f66ce07d34ed1b2f8c2There 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:

(6)
(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.

Source: OK

17 thoughts on “Oklahoma State University Did Not Report Alleged Sexual Assaults Out Of Fear They Might Be Accused Of Violating The Student’s Privacy Protections

  1. There has been the charge that many schools intentionally under-report crimes, particularly sexual assaults so that they do not look bad to prospective students. At one level I always thought that was a bit complex of an explanation for what could more easily be seen as ignorance and sexism. But when the decision is as well thought out as this with the sorts of people involved that had input here no other explanation really fits.

    Someone defiantly needs to get the ax over this, start with the admin who went looking for a reason to not report & take the person responsible for the legal opinion with them. It has gotten to the point that if heads don’t roll nothing is going to change.

  2. “It has gotten to the point that if heads don’t roll nothing is going to change.” That train left a long time ago. Just look at the fraud perpetrated by the banks, they didn’t just walk, they walked with with the money they stole, fat bank accounts, and second, third, and fourth home all over the world.

  3. One of my graduate courses was Law & Higher Education (the textbook, The Law of Higher Education, by Kaplin & Lee;1995 edition has more 1000 pages!!); Higher Education Law is so complex and complicated. You wouldn’t believe the amount of protection colleges and universities are afforded!

  4. JT states, “Indeed, the university is under legal obligations to do so [reporting sexual assault allegations] for the protection of its student body.”

    The source newspaper article, however, states “OSU officials also did not break any law or internal policy by not calling police, according to the report.”

  5. “For example, the students could have gone directly to the police.”

    Why don’t they? This seems to be the common problem in all of these cases. The Universities have a vested interest in keeping such assaults “quiet.” It’s not just in Oklahoma either. There was similar non-reporting to the police at Marquette University in Milwaukee. Are campuses like the Vatican? Above the law?

    “…Marquette administrators told the Tribune that they have violated their reporting obligations for the past 10 years. And in at least the two most recent cases, the lapse played a role in prosecutors declining to press charges.”

    http://mu-warrior.blogspot.com/2011/06/marquette-in-spotlight-for-handling-of.html

  6. I think Frankly and JMQuinn have the aswer. This is a coverup to protect OU’s reputation and OU’s lawyers looking for a face saving peg to hang OU’s actions on.

  7. The most egregious harm is to those attacked after the initial attack was reported. If the guy had been charged, presumably the attacks on subsequent victims wouldn’t have happened.

  8. I wonder if Oliver Wendell Holmes was right about the need to sterilize idiots, for the greater good of society, in order to prevent the rest of us from being swamped by incompetence?

  9. {music}
    He was born, in Oklahoma..
    His wife’s name is Betty Lou Thelma Liz…..
    He’s not responsible for what he’s doin….
    His mother made him what he is!

    And, its up against the Wall Redneck Mothers!
    Mothers who have raised a son so well….
    He’s thirty four and drinkin in honky tonks…
    Kickin hippy arses and raisen Hell.

    –Jerry Jeff Walker.

    Having lived in Oklahoma there is logic here in the decisions by these folks. Keep it on the Reservation so to speak.

  10. Meanwhile…back at the University of North Carolina…

    Highlights~

    “When a UNC student, [Landen Gambill] tried to bring attention to neglected reports of rape on campus, she was charged with violating the school’s honor code.”

    “What’s worse, she says, a detailed account of the alleged abuse, which she had submitted as evidence, was given to her parents without her permission by a student representative—because, in Gambill’s words, he “just thought they should know.”

    “A source within the office of the honor system, who asked not to be named, also declined to reveal specifics about this particular case, but says the honor court had gone through a three-hour training for sexual-assault cases that February, and confirmed that sharing confidential paperwork would be a violation of the Family Educational Rights & Privacy Act.”

    “In a preliminary meeting last week, Gambill was told that her rapist had complained she was creating an intimidating environment for him and was disparaging him by speaking publicly about the school’s mistreatment of survivors, even though she has kept him anonymous. At the meeting she asked if publicly saying she was raped was a violation of the honor code. The answer was yes, Gambill says.”

    Last Friday, Gambill received an email that she would be charged with violating honor code Section II.C.1.c. for “Disruptive or intimidating behavior that willfully abuses, disparages, or otherwise interferes with another … so as to adversely affect their academic pursuits, opportunities for University employment, participation in University-sponsored extracurricular activities, or opportunities to benefit from other aspects of University Life.” She will have a second preliminary hearing this week to enter a plea; if found guilty, her punishment could range from community service to expulsion.”

    http://www.thedailybeast.com/articles/2013/02/28/expelled-for-speaking-out-about-rape.html?utm_medium=email&utm_source=newsletter&utm_campaign=cheatsheet_morning&cid=newsletter%3Bemail%3Bcheatsheet_morning&utm_term=Cheat%20Sheet

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