Last month, the student reporters at Oklahoma State’s The Daily O’Collegian received an anonymous letter that said a former member of one of the school’s fraternities had committed nearly a dozen sexual assaults against new fraternity members. The O’Colly contacted the local police department, who hadn’t heard of the assaults. Shortly after, Stillwater police contacted school administrators, who confirmed the university knew about “‘several occurrences” similar to those described in the anonymous letter but had declined to contact police about the incident. Gary Shutt, Oklahoma State’s director of communications, said in a statement Monday that “due to federal laws (FERPA), OSU was not allowed to contact police.”
Stillwater police Capt. Randy Dickerson said he has been told by Oklahoma State’s student conduct office that it can’t disclose any additional information to police, including the results of a disciplinary hearing, because of FERPA. In interviews with The O’Colly, Shutt said the university conducted a “level three student conduct committee hearing,” which is used when suspension or expulsion from the university is possible. The student conduct committee made its decision Nov. 30, Shutt told the paper. As of Monday Dec. 10, the student was still enrolled, according to the registrar’s office.
Source: The Daily O’Collegian, UPDATE: Stillwater police speak to alleged victims in sexual assault investigation (Dec. 7, 2012), OSU did not tell police of sexual assault allegations (Dec. 10, 2012) and Student accused of sexual assault still enrolled at OSU (Dec. 10, 2012)
SPLC Executive Director Frank LoMonte: Let’s play a game. I’m going to give you two paths to choose from. Each path carries a risk.
If you decide to go down Path Number One, the worst thing that can happen is that unsuspecting college students will get raped by a sexual predator.
If you choose Path Number Two, the worst thing that can happen is that you’ll get a harsh letter from the U.S. Department of Education.
If you decided that the less dangerous choice was Path Number One, congratulations. You just passed the administrator certification exam for Oklahoma State University.
When the grotesquely flawed and misused FERPA statute is repealed by Congress and replaced with a clearer one — and make no mistake, that day is now very near — this will be the case that changed everything. The day that FERPA Jumped the Shark.
Nobody — not one person — outside of the administrative offices of Oklahoma State University thinks that what has happened in Stillwater is a defensible exercise of judgment. Giving OSU the benefit of every doubt, the college knew at a minimum that credible accusations existed that a serial sex offender had preyed on at least five student acquaintances (and police are now saying the number may go much higher).
Did they transmit a warning to the campus community? No.
Did they promptly remove the student from campus to separate him from other potential victims? No.
Did they notify the police? No.
What they did — all they did — was send the case to the same disciplinary board that punishes you for having too many overdue library books.
Because, they say, of FERPA.
Had a tipster not notified the alert student journalists at The O’Colly — who, unlike OSU administrators, recognize serial rape as kind of a big deal — a string of sex offenses that may exceed a dozen would have gone un-prosecuted.
There are times when emergencies entitle you to violate the law. If you’re rushing a gunshot victim to the emergency room, it’s excusable to speed. If you’re on fire, it’s excusable to grab your neighbor’s jacket to put it out.
And if you’re pretty convinced that there’s a serial sex offender on your campus, it’s excusable to let the police know. That’s what the U.S. Department of Education — which enforces FERPA — told schools last June in a memo that was specifically intended to keep FERPA from becoming an obstacle to telling the police about ongoing dangers to student safety:
[I]f a school official can explain why, based on all the information then available, the official reasonably believes, for instance, that a student poses a significant threat, such as a threat of substantial bodily harm to any person, including the student, the school official may disclose personally identifiable information from education records without consent to any person whose knowledge of the information will assist in protecting a person from threat.
An exhaustive list of all the ways in which Oklahoma State is wrong would be, well, exhausting. Let’s just hit the high points:
- The Department of Education’s FERPA rules explicitly say that asking the police to investigate crimes doesn’t violate student privacy: “Nothing in the Act prohibits an educational agency or institution from contacting its law enforcement unit, orally or in writing, for the purpose of asking that unit to investigate a possible violation of, or to enforce, any local, State, or Federal law.” That’s game/set/match right there. Oklahoma State is down to two choices: (a) stupid or (b) lying. That’s no way to go through life.
- Leaving aside the existence of a directly-on-point FERPA exemption, it’s entirely possible to notify the police of a security risk without giving away the identities of the victims — and FERPA prohibits only the release of identifying information, not generic information.
- It’s also entirely possible that the police had information that would have been directly relevant to the disciplinary decision. While this turns out not to be the case, suppose the police had already begun their own investigation based on complaints from seven different victims? (It’s not exactly a leap of the imagination that rape victims might, you know, go to the police.) Wouldn’t that have been informative in deciding the accused student’s level of dangerousness?
- A federal disclosure law, the Clery Act, requires colleges to issue a “timely” warning to the campus community whenever it appears that criminal behavior “represents a threat” to students or employees. See 34 C.F.R. Sec. 688.46(e). Once an OSU disciplinary board concluded that it was probable that the accused student had a pattern of predatory behavior — and knew he was still on the campus — it’s difficult to excuse the failure to alert the public. As a federal appeals court said in a 2007 interpretation of the Clery Act:
[T]he need to assure safety and security for campus communities counsels that doubts should be resolved in favor of notification.
Hmm, it’s weird, you ever have that feeling that you’ve seen the movie already? A suspected sexual predator loose on a college campus? Administrators who could’ve called the police but decided not to? Boy, this one’s going to be bothering me all day, I can’t shake the feeling we’ve heard this somewhere before.
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