LoMonte said disciplinary processes are usually confidential under the law, except when cases deal with actions that would constitute a crime.
“Congress made the decision to carve out that set of records where there is an overriding public right to know,” he said. “If we kept those things confidential, then a person could be living in the dorms right up the hall from a serial rapist and not even know it, so there’s a compelling public safety purpose in disclosing those records.”
Sara Gregory, managing editor of the DTH from 2008 to 2010 and former fellow at the SPLC, said students who commit crimes should not be granted special privileges just because they commit the crime on a college campus.
“The names of students is an incredibly valuable piece of information, and it’s something that the author of FERPA has said he never intended the law to be used this way,” she said. “And it’s something that Congress has specifically made clear in FERPA that it does not apply to students who have been found responsible for violent crimes.”
“The federal law is not what’s stopping colleges from releasing this information.”
In 2010, DTH Media Corp., along with several other media organizations, sued the University for public records containing student-athletes’ parking tickets and athletic department officials’ phone records.
The University refused to release the information, citing FERPA. Superior Court Judge Howard Manning ruled in 2012 that FERPA did not protect information being requested regarding NCAA violations.
“FERPA does not provide a student with an invisible cloak so that the student can remain hidden from public view while enrolled at UNC,” Manning wrote in the decision.
In 2014, the DTH obtained information regarding five sexual misconduct cases that involved violations of the University’s sexual assault and discrimination policy between August 2012 and August 2014.
The records showed those students could have been punished with a written warning, a suspension for one or more semesters, a no-contact order, an educational module or probation for an indefinite time period; no students were expelled.
A national perspective
Kylie Jue, editor-in-chief of The Stanford Daily, a student publication at Stanford University, said Stanford’s handling of recent sexual assault cases has been as transparent as possible within the limitations of FERPA.
In cases like this, The Stanford Daily only publishes student names if a student is found responsible by the university, if they are found guilty in a criminal case, if the safety of the public is in question or if the name is already public record. In the case of Brock Turner, the Stanford student recently jailed for sexual assault, Jue said The Stanford Daily published his name after he was expelled.
“If other students in the community are endangered by the situation, then we expect that names or identities or the important information to keep students safe is released,” Jue said.
Lisa Lapin, spokesperson for Stanford University, said in an email the university provides timely warnings when there is a safety threat and the assault is reported to the university.
She said names of students are only made public if the cases result in an investigation and arrest.
In 2014, the SPLC and The Columbus Dispatch published a joint study of 110 colleges, asking them to provide names of students found responsible for violent behavior.
More than 75 percent of schools provided no documents in response. Twenty-two schools cited FERPA in their refusal to release the names, despite the exemption for sexual assault.
Need for transparency
LoMonte said releasing these records allows the public to know how often criminal behavior is funneled through university disciplinary systems rather than the justice system.
“With access to these statistics, we can find out if sexual assaults are being seriously punished or have resulted in a slap on the wrist,” he said.
Melinda Manning, assistant dean of students at UNC from 2001 to 2012, said the small number of reported cases and disciplinary actions may be reason for the University’s lack of transparency.
“The reality is that very few students have probably been expelled,” she said. “I’m only aware of one and that was back in the 1990s. The University may be uncomfortable with the general public knowing that.”
Manning said structural problems may have resulted in a small number of students reporting sexual assaults, and once they do, an even smaller percentage of cases lead to disciplinary action from UNC.
“When the University started this reform process, they said they were going to be more transparent, and I think they need to honor that promise,” she said. “You can be transparent while maintaining privacy.”
The 2014-15 annual report from UNC’s Equal Opportunity and Compliance Office said UNC received 18 specific allegations of misconduct that year, but the report did not separate reports of interpersonal violence and sexual assault from reports of sexual discrimination, sexual harassment or stalking.
LoMonte said it is a no-brainer to at least reveal the statistical volume of cases.
“There’s no good argument not to disclose,” LoMonte said. “The only argument not to disclose is the public might be alarmed to learn the truth, and that’s not a very good reason to keep secrets.”
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