A Connecticut state court judge rebuffed Central Connecticut State University’s (CCSU’s) attempt to use the Family Educational Rights and Privacy Act (FERPA) to deny an accused student access to evidence against him. The decision is a shot across the bow for schools considering invoking FERPA to withhold police records during disciplinary proceedings even though FERPA explicitly excludes law enforcement records from being withheld.
Austin Haughwout, a former CCSU student, sued after he was expelled for making a “true threat,” a form of unprotected speech outside the bounds of the First Amendment. According to a campus police report, Haughwout allegedly said to a student, “I should just shoot up this school,” and told another student that he was Haughwout’s “number one target.” Witnesses also stated that Haughwout constantly talked about guns and ammunition and “greet[ed] everyone by pointing at them with his hand in the shape of a gun.”
However, none of these witnesses appeared at Haughwout’s disciplinary hearing, where he denied making these statements. The evidence presented against him at the hearing consisted almost entirely of the campus police report containing this second-hand information. CCSU withheld this crucial document from Haughwout until the hearing, citing FERPA.
The university’s distorted interpretation of FERPA is noteworthy because it perversely construed the statute, which was designed to protect students’ rights, to require the denial of one of the most fundamental due process rights of the accused—the right to present a defense. No witnesses appeared at Haughtwout’s hearing—only a single investigator who presented the police report to the disciplinary panel. When Haughwout asked to see the report, the university refused to give him the names of the students who made the statements against him until midway through the hearing. Unsurprisingly, he was found responsible and expelled.
This is not the first time that FERPA has been invoked by schools to conceal records FERPA explicitly exempts from its coverage. FERPA requires schools receiving federal funds to keep student “education records” private, but it explicitly excludes records generated by campus law enforcement. Yet this has not prevented numerous schools from erroneously citing FERPA in refusing to disclose crime statistics, such as the number of sexual assaults and other acts of violence on campus, despite being required to do so under federal law.
Unfortunately for Haughwout, despite prevailing on the FERPA issue, the court ultimately found that CCSU did not deprive him of due process in its decision to expel him. However, the court did not spare CCSU from its ire:
While this court believes that Central’s procedures satisfied the requirements of due process, it also believes that Central could have done better and should choose to do better in the future.
Why, for example, could Mr. Haughwout not have been provided with at least the redacted campus police reports and the arrest warrant application at the same time as [Director of Central’s Office of Student Conduct] Mr. [Christopher] Dukes sent him the written notice, without the need for him to file a Freedom of Information request?
The Student Press Law Center (SPLC) criticized the court’s conclusion that CCSU used adequate disciplinary procedures, questioning how Haughwout’s expulsion could stand when based “solely on . . . double- and even triple-hearsay testimony of CCSU’s director of student conduct, serving as both investigator and accuser, which would be inadmissible in a court of law.” These flaws were particularly egregious, the SPLC said, for hearings involving allegations of true threats because “the decisive issue is whether listeners genuinely understood what they heard as threatening.” Accordingly, “first-hand testimony of those listeners—and the ability to cross-examine them—seem essential to the fundamentally fair hearing that due process requires.”
While the ratification of CCSU’s scarce due process protections is troubling, we are pleased the court interpreted FERPA correctly. We at FIRE hope the decision discourages schools from using FERPA to restrict a student’s right to conduct a meaningful defense when facing university discipline.
We're joined by First Amendment attorney Marc Randazza and British journalist Brendan O'Neill to discuss the state of free speech in the United States and Europe. Randazza is a First Amendment attorney and the managing partner at Randazza...