Untangling the Web of Federal Regulations on Campus Sexual Assault

By August 2, 2011

In his latest piece for PolicyMic, FIRE’s Peter Bonilla writes about the impact that federal regulations have had on colleges and universities as they try to address issues of campus sexual assault and other criminal behavior. Peter follows up on a previous piece for PolicyMic in which he assessed the fallout from the Department of Education’s Office for Civil Rights’ (OCR’s) April 4 letter to universities; OCR’s policy guidance, as we’ve written in many places, represents a major threat to the due process rights of students accused of sexual assault or sexual harassment.

In this week’s follow-up, Peter points out that further muddying the waters are federal laws such as the Clery Act and the Family Educational Rights and Privacy Act (FERPA), which universities all too often have interpreted in ways that apparently have harmed student victims of sexual misconduct. These harms add to those suffered by accused students in the wake of OCR’s April 4 letter, Peter writes, yet the way to fix these problems regarding the Clery Act and FERPA is not to reduce protections for accused students.

Of the Clery Act, Peter writes:

The Clery Act requires universities to compile and disclose data on campus crimes (including sexual assault), and to provide students information on the determinations of cases in which they are involved. Groups like the Center for Public Integrity claim, however, that many universities do a shoddy job at the data collection, or stealthily get around reporting requirements. Universities can, for instance, nudge students toward counseling services on campus staffed by professional counselors – which do not (for confidentiality purposes) have to report such incidents under the Clery Act.

Or universities just lie. The most sensational example of this took place at Eastern Michigan University, which apparently did not disclose its knowledge of the rape and murder of a female student, saying instead that foul play was not suspected in the case. An investigation by the Department of Education further showed that EMU’s Clery reports had repeatedly misclassified sexual offenses.

As for FERPA:

Universities’ interpretations of FERPA – meant to protect students from having their educational records disclosed to the public – have at times been injurious to victims as well. At Temple University, a student was shocked to see back on campus the student whom she thought had been expelled for sexually assaulting her. Temple, citing FERPA, believed that it was prevented by the law from informing her that the student had appealed, and then failed to notify her that the expulsion had been overturned. The Department of Education corrected Temple, as it did the University of Virginia in 2008 in declaring that UVA could not require complainants to sign confidentiality agreements in order to be provided with information on their cases. The UVA case gives insight into the confusion caused where Clery and FERPA meet, with institutions believing they cannot provide the information required by the first act without violating the second.

Looking at such problems in the light of the April 4 OCR letter on the rights of accused students, Peter concludes:

As a result, federal policy has found itself at both ends of the problem of effectively combating sexual assault on campus. You might say that this amounts to failures on both sides of the scales of justice. Far from balancing things out, however, it reinforces that old saying: Two wrongs don’t make a right.

You can read his entire piece over at PolicyMic.