Why is it that if I have a disciplinary record for sexual misconduct under Title IX at my college, all other schools and grad schools find out about it?
Why is it that if I have a disciplinary record for sexual misconduct under Title IX at my college, which is supposedly confidential under FERPA, all other schools and grad schools seem to find out about it?
First off, Identify the Historical Moment:
If you are college-aged you grew up with Google and mega-data. In that context, student sexual misconduct disciplinary records that are so sensitive, that contain so much hurt about a school and its students, are electronic and do not stay private long. To make matters worse, the privacy scheme that regulates all school records is mostly a federal law called FERPA which went into effect on November 19, 1974. (1). Just let that date sink in for a minute or two—Nixon resigned to avoid impeachment on August 9, 1974 (2), the Berlin Wall fell on November 9, 1989 (3), a friend invited me to join a new service called Gmail around June 1, 2004 (4), Barack Obama became President of the United States on January 20, 2009 (5), and Instagram launched on October 6, 2010 (6). In your historical moment, a 1974 system operates the sensitive electronic data of 2019.
Second, Consider the Realpolitik:
So what has a law like FERPA, drafted in the aftermath of the Nixon impeachment, done to your Google-indexed and data-mined privacy? Well, FERPA works as a thinly-veiled attempt to eviscerate your right to privacy. This happens because FERPA is full of holes. It allows schools to disclose student records, without consent, to the following parties or under the following conditions (34 CFR § 99.31):
• School officials with legitimate educational interest;
• Other schools to which a student is transferring;
• Specified officials for audit or evaluation purposes;
• Appropriate parties in connection with financial aid to a student;
• Organizations conducting certain studies for or on behalf of the school;
• Accrediting organizations;
• To comply with a judicial order or lawfully issued subpoena;
• Appropriate officials in cases of health and safety emergencies; and
• State and local authorities, within a juvenile justice system, pursuant to specific State law. [Emphasis added].
These holes were put in FERPA for a reason: To make the education industry job easier. Schools to which you are transferring need to know if you owe your previous school money, and why you are transferring, so that they do not inherit a liability, and the entire US educational records keeping system relies on that assumption: That their need to know you could be a liability outweighs your privacy. As such, the system’s stake-holders have made it their official position that your disciplinary record will be full of big narrative (7), clearly drafted without your participation, and shared, electronically, with any one from whom you seek education or employment in the future. (8).
Just as a final safety, the system puts the burden on you to disclose your discipline even if you could find some way to stop that from happening under FERPA. For example, many first time students (and more recently transfer students) apply for college using The Common Application, known as “the Common App”. The Common App currently asks applicants, “Have you ever been or are you currently on probation, suspension, dismissed or expelled for any reason from an institution?” (9). If you have a disciplinary note you cannot answer “No.” The issue for you is establishing, from the start, the validity of that note, particularly if you plan a career in fields that actually explore your history, like, for example, law. (10). Oh, and just if you thought you could find some redress for your privacy, for example, suing your school because you found some arcane reason to prove it violated your FERPA rights, nah, the Supreme Court says that’s not allowed either. (11). Thus, the pragmatics of running an education system for millions of students forces your individual student data to be shared even if you object.
Third, Ahmm…You’ve Got to Check Your Privilege:
Heterosexual men are the overwhelming members of the student sexual misconduct respondent cohort. Worse, heterosexual men are the overwhelming members of the many decision-making and service-providing cohorts that run schools. (12). And women cannot opt in and out of communion with those male administrators in the same way a man can. Thus, seen from a woman’s perspective, it is easy to believe that education in the US has been and is still run by men and for men.
Sexual assault on campus, the efforts to prevent it, and the many unfortunate false claims of sexual assault on campus (13) (as well as the inflammatory statistics of it), provides the perfect crucible for all this festering heteronormative privilege counterreformation to crystallize. It is because your historical privilege as a heterosexual man has protected real creeps and swept their acts under the rug (ever heard of Harvey Weinstein? (14)) that feminist activism has now made any sexual misconduct allegation on your disciplinary record, no matter how small or false, a massive piece of your reputation and one that will be shared over, and over, again, FERPA or no FERPA, (15) unless your lawyers help you stop that.
I am an attorney and I defend mostly respondents of sexual misconduct in colleges or universities. This is absolutely not my legal opinion or my legal advice, but rather survey of the Title IX topic. If you’re in this situation, in any way, consult a lawyer now.
FOOTNOTES:
(1) https://www2.ed.gov/policy/gen/guid/fpco/ferpa/leg-history.html
(2) https://www.law.cornell.edu/constitution-conan/article-2/section-4/the-nixon-impeachment-proceedings
(3) https://www.iwm.org.uk/history/what-was-the-berlin-wall-and-how-did-it-fall
(4) https://en.wikipedia.org/wiki/History_of_Gmail
(5) https://en.wikipedia.org/wiki/First_inauguration_of_Barack_Obama
(6) https://en.wikipedia.org/wiki/Instagram
(7) See for example the recommendations of the club for school registrars, AACRAO, contained in their Student Conduct Administration & Transcript Notation: Issues and Practices, available at:
https://www.theasca.org/files/Best%20Practices/Transcript%20Notation%20-%20Final%20Report.pdf
(8) https://www2.ed.gov/policy/gen/guid/fpco/ferpa/index.html
(9) https://www.commonapp.org/blog
(10) LSAC’s legal ethical discipline requires self-disclosure of anything, including meritless Title IX complaints, even in the event of non-responsible findings. Intent is irrelevant to the applicant’s failure to disclose. See, e.g., :
“Misconduct or Irregularity is the submission, as part of the law school admission process, including but not limited to regular, transfer, LLM, and visiting applications, of any information that is false, inconsistent, or misleading; or the omission of information that may result in a false or misleading conclusion; or the violation of any law or regulation involving the law school admission process, including violations of LSAT test center regulations. Intent is not an element of a finding of misconduct or irregularity”
See, “LSAC Rules Governing Misconduct and Irregularities in the Admission Process” available at: https://www.lsac.org/applying-law-school/misconduct-irregularities
(11) There is no private right of action under FERPA for students who believe their rights have been violated. See Gonzaga Univ. v. John Doe, 536 U.S. 273, 276 (2002).
(12) “However, just 11 percent of the 1,145 team physicians working for NCAA athletic programs are women -- including 10 percent at the Division I level -- while only 31.7 percent of all head athletic trainers working at member schools are female, with 19.8 percent in the role at Division I schools.” See, Study shows gender disparity in NCAA team physicians, trainers, available at:
(13) https://en.wikipedia.org/wiki/Duke_lacrosse_case
(14) https://en.wikipedia.org/wiki/Harvey_Weinstein_sexual_abuse_allegations
(15) As any good lawyer will argue on your behalf, privacy (of a student), in the legal ethical normative, exceeds the provisions in and enforcement of FERPA which generally allow students to inspect, review, and be notified of record disclosure (20 U.S.C. § 1232g; 34 CFR Part 99), and places great emphasis on electronic data collection. See. e.g., EPIC’s model Student Privacy Bill of Rights available at: https://www.epic.org/privacy/student/bill-of-rights.html