By Erasmus Baxter and Asia Fields
Western has refused to release the names of students suspended for sexual assault, making it almost impossible to know how many of these students have been readmitted.
There are no students currently enrolled at Western who were previously suspended for sexual misconduct, said Paul Cocke, director of communications and marketing.
It’s impossible to verify how many students suspended for sexual assault have been readmitted, and also if any had past convictions that would point to a pattern of behavior.
In doing so, Western has cited the Federal Education Rights and Privacy Act, or FERPA, which protects most student records from being disclosed without permission.
In particular, Cocke pointed to a section that allows the release of students’ records without their consent only as long as identifying information is withheld.
“Western interprets this requirement to mean that personally identifiable information of any student must be redacted from records provided pursuant to Washington State’s Public Records Act, or, in some cases, that requests must be denied entirely,” he said in an email.
However, FERPA was amended in 1998 and subsection (b)(6)(B) explicitly allows institutions of postsecondary education to release the final results of disciplinary procedures (including the name of the perpetrator) related to violent offenses or non-forcible sex offenses, if the institution finds that the student committed the offense.
Western interprets this conflict as meaning that while it technically may release the names, it must redact identifying information, Cocke said.
Mike Hiestand, the Student Press Law Center’s senior legal counsel, said much of the issue comes from conflicting guidance for following the law issued by the Department of Education.
“It seems like Western’s policy now is they’re just not going to provide [that info] and that flies in the face of the intent of the law.”
While the law says the records must be released, the Department of Education has said that institutions don’t need to release the contents of records they believe would potentially allow someone to piece together students’ identities.
“I think the default position when that happens is you just clamp down, you don’t provide that information,” Heistand said.
However, he disagrees with Western’s interpretation of FERPA in cases regarding a sex offense or violent offense that result in a finding of guilt.
“It was very clear that if those two things were met, you were supposed to be able to get access to basic information about what the school had done, which included the name,” he said. “If the person is found guilty, the name is released and what they’re charged with and what the outcome of the proceeding was. That was supposed to be made available.”
He said the change in the law was implemented to provide more transparency to campus discipline systems, as justice was increasingly being handed out behind closed doors. It was also to ensure discipline is being administered fairly for all students involved, he said.
“Every time reporters have been able to get behind the door of these campus court systems, the things they find are really disturbing,“ he said.
Without knowing the names of suspended students, reporters from The Western Front and the AS Review have been unable to ascertain whether any students reported are repeat offenders. They’ve also been unable to see if there are other factors that might affect the discipline process, such as past convictions or special standing like being an athlete.
Hiestand pointed out that while universities can lose federal funding for violating FERPA, this penalty has never been used by the Department of Education for a FERPA violation.
“It seems like Western’s policy now is they’re just not going to provide [that info] and that flies in the face of the intent of the law,” he said. “The law was intended to provide more transparency to these campus disciplinary systems.”
That transparency benefits not just survivors, but students accused of misconduct as well, by providing students confidence in the system, Hiestand said. Unredacted records would allow the public to see if students found to have committed the same violations received similar punishments and were not treated differently, he said.
“[People] want to know how some of these investigations are being done, that they’re thorough, they’re competent,” he said. “And none of this stuff is available, none of this is stuff the public has access to. And that breeds distrust. You have to have trust in your justice system. If there’s no trust, there’s no justice system.”