All post-secondary institutions are expected to prioritize the most essential needs and interests of its students. The two highest-ranking concerns on the list of most colleges and universities are a student's entitled right to privacy and student safety. However, in an endeavor to maintain both of these priorities sufficiently, schools have found themselves in debacles where one must be compromised for the good of another. The balance between the interests of safety and privacy for individual students is almost always prevalent in the context of sexual misconduct.

The Family Educational Rights and Privacy Act (FERPA) has created stipulations for schools to adhere to in their efforts of maintaining student privacy. In compliance with this federal law, federally funded higher education institutions are prohibited from disclosing information from a student's education record in most circumstances. Education records include a range of information concerning a student in any documented way. Identifiable information, like their name, date of birth, parents, grades, disciplinary records, health documents, record of attendance, their social security number and more are protected.

Although FERPA has been deemed the nation's strongest privacy protection law, it still allows colleges considerable discretion to disclose a student's personally identifiable information for the sake of campus safety. We see this often when complaints of sexual misconduct - sexual harassment, sexual assault, sexual violence etc. - are approached by schools. FERPA dictates that postsecondary institutions are granted the option of disclosing to anyone, not just an alleged victim, the final results of a disciplinary proceeding if it determines that a student is a perpetrator of sexual misconduct. Essentially, all the entitled protections of privacy a student once was entitled is stripped with the verdict of a “responsible” finding.

But just because schools technically can disclose this information, it doesn't mean they will. In fact, they most likely won't. And if they do, it likely won't be exposed in a proclamatory manner. Aside from the self-serving reasons why institutions may opt to keep instances of this nature under wraps, schools must feel like the safety of a complainant and the campus community is at risk. If a student is expelled for their actions, a school may not see them as a threat to its respective campus anymore. If a perpetrator is subject to a suspension, a school will have to disclose this instance to campus security in compliance with the Clery Act for the purposes of collecting, reporting and disseminating crime statistics to the campus community. However, disclosing personally identifiable information, even in these statistics, is prohibited.

Title IX Advisor Helping Clients Nationwide

The only way to make sure your voice is heard and your rights are upheld is to retain a student defense attorney. National Title IX attorney Joseph D. Lento has the skill, experience, and expertise to help you preserve your entitled rights under Title IX and your school's policy. For a case evaluation or more information about his representation, contact him online or give him a call at 855-535-3686 today.