The way colleges investigate and punish (or don’t punish) sexual assault is under a national microscope, with the U.S. Department of Education opening Title IX sex discrimination cases against schools accused of inadequately responding to campus rapes. At the University of Southern California, several students have come forward to say they felt victimized a second time by a disciplinary system that imposes little-to-no penalty on student rapists. The university, reports ABC News, won’t say how rapists are being punished: “USC officials said students accused of rape had been expelled from the college in the past, but would not confirm the number of expulsions, citing privacy concerns.”

Source: ABC News, Students Turn to Feds for Action on Alleged Rapes (July 25, 2013)

SPLC Executive Director Frank LoMonte: The quote attributed to USC by ABC News doesn’t refer to FERPA by name; it just says “privacy.” But whether the college is relying on the federal educational privacy statute or the common law of privacy that exists under state law, the answer is the same: Nope.

Statistics simply are not confidential, either as a matter of the Family Educational Rights and Privacy Act or as a matter of state privacy law. The statement that “ten students were expelled in 2012” contains absolutely nothing traceable to an individual student that would compromise privacy.

In fact, Congress has gone quite a bit further and said that all information about disciplinary cases in which a person is found liable for conduct equating to a violent crime or sex crime is exempt from FERPA privacy — that’s everything, names included. Since FERPA says, in so many words, that even student names aren’t even confidential after a finding of fault is made, there is no good-faith privacy argument for withholding mere numerical totals.

Like many schools confronted with a demand for embarrassing information, USC’s concern is less for “student privacy” than for “we-screwed-up privacy.” Because the number that ABC News asked for is almost certainly scandalously close to zero.

We know this because, just this past week, Yale University admitted that none of the six people found liable for non-consensual sex during the first half of 2013 got expelled, and in fact only one received even a lengthy suspension. More commonly, the punishment for rape is some combination of “disciplinary probation,” sensitivity training, and/or a reprimand. (At the University of Colorado, one rapist’s punishment was an eight-month suspension and a $75 fine. That’s less than half what you’d pay at Colorado for parking in a handicapped space without a permit.)

USC is a private institution and doesn’t have to obey state open-records laws, but the college at least ought to be honest about it. USC can say how many students were expelled for sexual assault. It just won’t say. Those concerned about campus safety at USC ought to let their president know that “won’t” isn’t good enough.

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