U.S. Education Department Criticized for Its Actions in Campus Sexual Assault Case

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U.S. Education Department Criticized for Its Actions in Campus Sexual Assault Case

Emily Crockett

Some student advocates are criticizing the federal government for supporting secrecy in a high-profile campus sexual assault records case in Montana.

Some student advocates are criticizing the federal government for supporting secrecy in a high-profile campus sexual assault records case in Montana.

The case centers around a University of Montana quarterback who was found responsible for sexual assault in 2012. The university court originally decided to expel the student, but he was merely suspended after an appeal to the Montana Commissioner of Higher Education.

When journalist Jon Krakauer asked for records of the disciplinary proceedings to learn why that decision was made, the commissioner refused, citing the Family Educational Rights and Privacy Act (FERPA) of 1974.

A district court agreed with Krakauer, charging that because the incident was a matter of public record, the privacy act wouldn’t apply.

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But in an appeal to the state supreme court, the Department of Education submitted an amicus brief to “clarify that disciplinary records constitute protected ‘education records’” under FERPA, and cannot be released.

This flies in the face of the Obama administration’s efforts to crack down on campus sexual assault and encourage more transparency, said Frank LoMonte, executive director of the Student Press Law Center.

In a letter to Education Secretary Arne Duncan, LoMonte said he found it “alarming” that the department is arguing for concealment when the case hinges on “whether government officials may invoke ‘student privacy’ to cover up how they respond (or fail to respond) when a prominent athlete is accused of sexual assault.”

While the federal government said its brief does not support either side, LoMonte said its arguments clearly favor the university.

“It is astonishing that the sole statement from your Department about FERPA and sexual assault on college campuses is a statement in favor of the continued concealment that has allowed violent crime to fester for so long to the detriment of so many,” LoMonte wrote, noting that the department “seldom intervenes” in similar student privacy cases.

In a joint investigation by the Student Press Law Center and the Columbus Dispatch last month, more than 75 percent of schools contacted by the newspaper refused to provide disciplinary records for cases involving violent crimes, even in states where open-records laws require the release of such information.

“When you have a high-profile case that’s already been fully aired in the news media, it just doesn’t make sense to have a blanket of student privacy over the documents any longer,” LoMonte told Inside Higher Ed. “Whose privacy are you protecting?”