November 15, 2020

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Runtime: 00:50:15

Below is a transcript of episode 10. We encourage you to listen to the episode. It was written to be heard, not to be read. 

Laura Dunn : It’s very hard to understand, it is not a well-written law

Sara Ganim narration: In this episode…

Marianna Faiello narration: They’re huge landmark cases. I mean what happens over the next few months can have a serious impact on how courts look at cases like this in the future. 

Sara Ganim narration: Part two of how privacy is used as a weapon in the most sensitive cases. 

KVUE: Students held up signs that read “no” in silent protest.

KVUE: Fire the abusers. 

Laura Dunn: It is a law that serves the interest of the schools, even though it really should solely 

be a protection of a student’s interest. 

Cornell Student: I think they know that there’s some material in there that they don’t want people to be seeing.

Sara Ganim narration: From the University of Florida’s Brechner Center for Freedom of Information, I’m Sara Ganim, and you’re listening to an episode of Why Don’t We Know the podcast that dives deep into data and comes out with real stories.

Two court cases, which have been meandering through the system for more than four years now, are challenging a common claim that universities cannot share the outcomes or punishments given in sexual misconduct investigations because doing so would violate a Federal Student Privacy Law called FERPA.

You hear FERPA thrown around all the time in the world of education. 

You hear people say things like “FERPA covers this..,” “FERPA protects that..,” 

“Can’t tell you because of FERPA.”

Eyewitness News: “Parents of new freshmen realize that they might have access to their child’s grades. Once a student goes to college, they not only have more freedom but they also have more privacy rights, thanks to FERPA!” 

Sara Ganim narration: FERPA is shorthand for the Family Education Rights and Privacy Act, and it was actually meant to make sure that students and parents could have access to their own records, so that school administrators couldn’t keep things from them. 

That later morphed into a Privacy Act and the history of the law is something that we’ll get into more next episode. But for now, what you need to know is that FERPA does not always protect the things that schools claim it protects. 

In fact, more and more, we are seeing brazen examples of universities using FERPA as a shield to instead hide information that might make them look bad. 

That’s what’s happening here in these three court cases: one at the University of Texas-at Austin, another at the University of North Carolina – Chapel Hill, and a third at the University of Kentucky.

The universities are using FERPA as a reason not to share outcomes of Title IX cases, claiming that someone could potentially reverse engineer the identities of the student involved by seeing the punishments that are handed out.

These cases, they could have a nation-wide ripple effect. 

Here’s Why Don’t We Know Reporter Marianna Faiello again with a recap. 

Marianna Faiello narration: All of these cases originated with reporters filing basic open records requests asking for the punishments handed down in sexual assault and harassment cases. 

But the universities continue to fight these cases by arguing that sharing outcomes is a violation of student privacy under federal law. 

In all three court cases, the courts so far have sided with the journalists, saying FERPA does not apply.

But in Kentucky, the University appealed to the state Supreme Court. In Texas, the university is planning to appeal, and in North Carolina, a final ruling was handed down by the state’s highest court, but the university officials are now petitioning the United States Supreme Court to take on the case.

UNC has said in legal documents that it’s a matter of principle.

Sara Ganim narration: Even though the UNC case reached the State Supreme Court, and they lost they had to release the outcomes, they’re still fighting it?

Marianna Faiello narration: They’re claiming privacy is more important than public disclosure.

Sara Ganim narration: Here’s the thing, there are ways to protect privacy without operating in complete darkness.Police and the courts, they do this all the time.

If you walk into a courthouse and ask for a police report that has a victim’s name, or an informant’s name, or even just a driver’s license number on it, you will still get the report, the confidential information will simply be redacted. 

But when it comes to universities, this is not a consistent practice, and so it’s not guaranteed that there is a check and balance to make sure that things are being handled correctly. For example, are there repeat offenders who remain on campus… what are the punishments that are being given to people who are found responsible for sexual misconduct? 

In the case of the University of Texas-Austin and the University of North Carolina, Chapel Hill the FERPA argument is about the privacy of the students who are accused. 

But at the University of Kentucky, using FERPA is even more mind-boggling, because that case is about professors and staff members who are accused of sexual harassment. 

They don’t have FERPA rights, and so instead the university is bending FERPA to say that the victims names could be somehow ascertained by sharing the punishments in those cases. 

When we sought outcomes from schools around the country for our data project, we got a few responses just like that.

Marianna Faiello narration: The University of Massachusetts told us that disclosing this information is “an unwarranted invasion of personal privacy.”  And California State Pomona said that there is “strong public interest served by not disclosing the complaints far outweighs the public interest on disclosure.

Sara Ganim narration: As part of the lawsuit at Kentucky, the university is really waiving the victim flag, trying to make this case that they are standing with survivors. They even got a few of them to write statements on behalf of the university. 

Marianna Faiello narration: UNC did this too, saying that releasing punishments could undermine the fragile trust that the university has built to encourage reporting of sexual violence.

Now, to the contrary, the journalists are saying that reporting by victims actually increased exponentially after journalists began writing about the frequency of sexual assaults and making people aware there were mechanisms for recourse. 

Sara Ganim narration: There are people on both sides of that argument of whether disclosing outcomes of cases would discourage or encourage victims in coming forward. But you know what definitely does not encourage victims to come forward? When cases are not taken very seriously. When say, for example, someone is found responsible for sexual misconduct, but not really punished. Marianna described this last episode, what she saw from some of the data we got back.

Marianna Faiello narration: Well, for example, when I was working on the open records requests for this episode, I noticed that several times the punishment for a student who was found responsible for a sexual assault, was to write an essay about how sorry they were, and that was it.

Sara Ganim narration: At UNC Chapel Hill, when the state’s highest court ruled in favor of the journalists, UNC was forced to hand over the outcomes to the student newspaper, The Daily Tar Heel, and you know what those outcomes showed? Of 15 cases where someone was found responsible for sexual misconduct there were only two cases where they were subsequently expelled. 

Maybe that’s why UNC fought so hard for four years to keep those outcomes secret.

I also want to note that I looked at the outcomes that were finally published by the student newspaper as a result of the court ruling to see if there was any merit to this argument that you could somehow reverse-engineer identities. 

The outcomes did not show anything close to identifiable information. 

To give you an example, one line of the chart, says, simply case A, suspension, 

That’s it. That’s the information that may lead someone to figure out who was involved?

And even if you somehow could figure it out?

In 1991, congress addressed this very issue recognizing that there are times when there is a public safety concern, and the punishment for a student found responsible for a violent crime “may be” disclosed. 

That’s the exact language of the law … “may disclose.”

Essentially, a school could take out a billboard if they wanted to because the 1991 amendment says that in those public safety instances, the name, charge and punishment may be given out. 

But the universities have argued that “may disclose” also means “may not disclose”

they read the law the opposite way, that congress was giving them permission to keep it secret. 

In all three of these legal cases, the courts did not agree. 

There are plenty of examples where universities have opted out of warning the community about a public safety threat.

Maybe one of the worst examples of this happened at Oklahoma State in 2012 when an officer at a fraternity was found to be responsible for serial molestation of drunk pledges. The university found him responsible and gave him a two-year suspension, but never notified the police about the case findings, wrongly believing that FERPA prevented them from telling authorities. 

So this guy who was found to be molesting people was allowed to stay in the community with no police investigation because of a mis-use of FERPA, and instances like that are why not all victims and advocates feel that absolute secrecy works in their favor. 

Laura Dunn Ted Talk: Unlike what you may have seen on “Law & Order: SVU,” justice is rare for victims of gender violence.

Sara Ganim narration: Laura Dunn, for example … 

Laura Dunn Ted Talk: Institutions have historically swept gender violence under the rug.

Sara Ganim narration: Dunn was a freshman at the University of Wisconsin when she was raped by two members of the crew team. She’s been really open about this over the years. Here she is talking about how the law fails victims of gender violence during a Ted Talk.

Laura Dunn Ted Talk: Instead of going institution by institution, fighting for reform, it’s time to go to the Constitution. 

Sara Ganim narration: Dunn is now one of the nation’s leading attorneys fighting for victims of campus sexual assault, but before she helped anyone else, she was forced to become her own advocate at the University of Wisconsin.

Laura Dunn: At the time, the University of Wisconsin had a system where if you went to the Dean of Students’ office, the first Dean that you talked to automatically is assigned as your “advocate.” I don’t think that is a sincere title because, to me, an advocate advances the interests of the person they are advocating for, above and beyond all others and, in fact, does not have a different interest. And this was a Dean who I believe now is the Title IX Coordinator of the University of Wisconsin, so is still present, and she was very supportive and very kind, but she was not an advocate. 

Sara Ganim narration: Dunn told me how delays in her case allowed both men to graduate before the system in place could work. When she finally pushed for a result…

Laura Dunn: The school said that “consent was moot,” that both parties were drinking and therefore, they couldn’t make a determination about who was responsible. And um, that’s an absurd finding for numerous reasons, one, you know a sexual assault has occurred because of consent, it’s never moot, it’s never irrelevant, it’s always the most relevant point. And just because both parties are drinking, it doesn’t mean one isn’t a perpetrator and another isn’t the victim. So I was very furious with that outcome. 

Sara Ganim narration: But secrecy kept Dunn — the alleged victim in the case — from getting a copy of the report.

Laura Dunn: That outcome is read to me from the computer screen of my “advocate,” the Dean of Students. I was never given a copy, I was never able to see the words for myself. I was allowed, with the assistance of the an, she typed up my response, which was outrage, so I still had my response to that outcome to show that it was, in fact, read to me, but they never released the actual outcome either, to myself or any journalist who tried to seek it afterwards, and they have intentionally hidden that because I do believe I would have had a very interesting lawsuit, had I had that document.

Sara Ganim narration: Her case is a clear example of secrecy protecting the institution, not the alleged victim.

Laura Dunn: So there is that privacy interest, it’s valid, it’s important, but it always has to be measured against the interest of the public to ensure accountability. Schools have data, one would hope they were using it towards some type of prevention or resources and budget, but many of them may have that only for internal purposes. 

I know one school in the South, who I heard from local advocates at the campus level and even from some professors who worked for the school, had a 40 percent undergraduate sexual assault rate for students. That is off the charts, that is the highest range I have heard, and that was even after aggregated graduate programs in. A lot of that is likely explained not just by the close relationship between the campus and the city and the reputation of the city, but also the fact that over 50 percent of their students are involved in Greek life, which is a strong influence. 

So that is information that a school has, but may not want anyone else to know because that would obviously hurt their admissions numbers, that would obviously create a lot of outrage and demand for change, all of which I think are in the public’s interest to know and actually seek change for. But a lot of schools, if they can keep it under wraps, if they can do it privately, if they can have a few years to fix a problem they should fix overnight, that’s what they’re going to do. 

Sara Ganim narration: I asked Laura Dunn about FERPA and whether she thinks it’s being manipulated and misused to shield the outcomes of these kinds of cases. 

Laura Dunn: I think anyone who works closely with my advocacy or even has been trained by me about the federal laws that apply, knows, my deep annoyance, for lack of a better word, at FERPA. It is a law that was meant to protect students so that they weren’t having their information disseminated without their knowledge or for improper purposes, and it was written so poorly, it is one of the worst written laws of history, from what I can tell, and it, instead, has only, to this date, been used, especially on this issue of campus sexual assault, to shield institutions.

There’s so many loopholes where there’s permission to disclose, but not a requirement to disclose. Schools, obviously, are not going to exercise their judgment in a way that adversely affects their interests, so no matter what is in the student’s interest, which should be the only governing factor, the law’s been written in so many ways to allow schools to exploit it.

Sara Ganim narration: Dunn right there is referencing the congressional amendment that allows schools to disclose FERPA information that pertains to public safety. 

This came up recently at the University of Wisconsin — the same school where Dunn had such a horrible experience as a survivor. 

The University found a Botany professor had engaged in sexual harassment but refused to release any information about what their investigation found. 

The local newspaper was simply asking for data — the number of accusers, the timeframe of the harassment the university said “sorry, student privacy prohibits us from telling you that.” 

It made me wonder, what are these schools afraid of? 

So I asked the Department of Education, has anyone ever been punished by a school for warning its students or the public about a predator? And the answer was no. Never. Not once. 

Laura Dunn: People are scared to death of losing their federal funding from the office of civil rights under Title IX it has never happened once. So yes, the “big stick” of the federal government, I think everyone knows, has never been wielded.

Sara Ganim: Do the schools, in your experience, do the right thing when it is in the interest of public safety, do they release information that the public should know? For example, a professor who has repeatedly been accused in the outcome of cases where there are multiple victims? 

Laura Dunn: In my experience, the fundamental flaw for all congressional efforts to force universities to do the right thing is this ongoing belief that schools will somehow magically do the right thing. Everyone wants to believe that those who educate us and are in charge of protecting our students will put public safety in the students first, and that is nothing short of naïve; I think anyone who does litigation has seen the underbelly. 

These institutions of education, more so today than ever before, are corporate entities out for profit, and their primary purpose is perpetuation of their own institution at any cost, including student safety and student well-being. So I think, in my experience and in many cases, schools use FERPA as a shield, they try to prevent accountability for their actions, and they certainly are not using even the discretion allowed to them around campus safety to ensure the public interest.

Sara Ganim: Has this always been your opinion about privacy in these cases? I mean, has it evolved over years or changed your view of FERPA?

Laura Dunn: I think the more I do this work, the stronger the viewpoint becomes. Just to step back before going specifically to FERPA, when I think about Title IX violations, which is the law that holds schools responsible for addressing reports of sexual misconduct, it’s not always malintention, some of it is people are not well-trained, or they thought they were doing the right thing in the context of a lack of training and guidelines and procedures, so not everything is malicious. But when it comes to FERPA, I do think it is intent, there are absolutely times where schools absolutely know what the law says and what they could do, and they intentionally choose not to. 

Sara Ganim narration: Attorney Brett Sokolow, the University Title IX trainer who we heard from last episode, he thinks it’s more likely that schools are confused by the messiness of FERPA.

Brett Sokolow: It’s very confusing, and I think what they were trying to do was to keep a lid on the harm that would be caused to the parties if things were disseminated publicly.

Sara Ganim narration: Last episode, Sokolow told us that politics is muddying the water, creating a political football out of Title IX. and he told me that’s also part of the reason that FERPA is so messed up.

Brett Sokolow: While Title IX keeps being revised and updated, FERPA is really static, and it needs some serious updating to keep pace even with Title IX, and it’s not. So you have these two inherently conflicting laws on a lot of different points, and you can tell in the regs that OCR was trying to make nice with the FERPA folks, and give them a lot of deference. But at the end of the day, Title IX still is countermanding some of the requirements under FERPA. So I think that some schools use this as an excuse to overprotect information, but that relates to dealing with the parties, not just with the public. So I think it’s been all over the map.

Sara Ganim narration: All over the map. Just like the data that we collected.

Laura Dunn: There does have to be a balancing act, and I don’t want survivors to sacrifice all their privacy, and that’s why compromises around forcing schools to provide data would be helpful. How many professors are being reported every year? How many of them are being removed? How many of them are even found responsible in the first place? Those are things that may preserve privacy, but allow some accountability, and there has to be that balance. 

Sara Ganim narration: Dunn told me hiding outcomes is not the only way that universities use FERPA to protect themselves. More and more, she’s seeing FERPA being used as a weapon against the very people it’s intended to protect.

Laura Dunn: I’ve actually seen University of Registrars start lying to students about what FERPA says, I’ve had one school say, “Well, you’re no longer a student, so you’re going to have subpoena your own records.” That’s not true. Unfortunately, they are even willing to lie to students about their rights. 

Sara Ganim narration: Lie to students about their rights.

I am not surprised by much these days … but this one got me. 

It was shockingly easy to find examples where students who reported that they were the victim of sexual misconduct were also told by the university that they could not get copies of their own record.

That flies in the face of FERPA, which was designed for the very purpose of making sure that students could see their own records.

Samantha Brennan: They told me I can’t get them because the statute of limitations are not up.

Kendall Ware: This is attorney-client privilege.

Cornell student: I couldn’t save it. Couldn’t print it.

Abigail Owens: They said that there were no documents that they could give me.

Sara Ganim narration: I spoke to four women, all of them filed complaints of sexual misconduct to the Title IX office at their universities. 

All of them subsequently requested their own records because they believe those Title IX investigations were mishandled. 

All of them were given a hard time by their universities, and three of four of them still have not received their records. 

The one who did receive her records was told that she had to come into the FERPA office in person, after she had graduated, and could view them but could not make copies, could not bring anyone with her. 

Cornell student: It was difficult, because I live six hours away. There really was no way for me to feasibly go to the school to view the documents, and then more than that, I wouldn’t be able to use them. I don’t even think I would be allowed to take notes in person. So it would have required me to memorize it.

Sara Ganim narration: In this case, Laura Dunn, is the woman’s attorney, and so Dunn filed a complaint with the Department of Education. 

Cornell student: They almost immediately, after the complaint was sent in, they notified me that they would be able to give me an electronic only, read only copy that would allow me to view it on my computer, but still would not allow me to share it with my lawyer because there would be no way for me to actually pull the documents or share the documents, because it was read only.

Sara Ganim: So read only, I think, can mean a lot of different things. Do you mean by read only like you could not print, you could not save a copy? Is there any way feasibly, could you take screenshots? What were the limitations on this document specifically?

Cornell Student: I couldn’t save it. Couldn’t alter it in any way. Couldn’t print it. I guess hypothetically, I could take a screenshot of every page, but like I said, the entire document I believe is close to 6,000 pages. So I really wasn’t sure that that was a feasible way for me to actually save it. They said it’s for your eyes only, read only, you can’t save or distribute it in any way.

Sara Ganim: That’s pretty surprising, since it’s your record, that you can’t decide if someone else can see it.

Cornell Student: Yeah. Especially a lawyer.

Sara Ganim: And was there any other limitation on this document, like how long you had possession of it?

Cornell Student: Yes. So the other really difficult constraint is that I only have access to it for two weeks at a time, which means that I completely lose access to the file, which was uploaded to a file sharing service. I completely lost access to it after that time period.

Sara Ganim narration: To be clear, FERPA does not actually give students the right to copies of their own records. What it gives them is the right to come into an office and inspect them. 

And so some are going another route, asking for their own educational record through open records requests.

But this, too, can be problematic. 

For one, students at private universities don’t have the option to use open records laws. 

The second reason is that universities manipulate open records laws to keep documents out of reach.  

The three other women who I spoke to for this episode, they all attend public universities and they all tried to get copies of their own records through open records laws, unsuccessfully.

Kendall Ware: I was asking for just everything that had to do with me personally and my case.

Sara Ganim narration: That’s Kendall Ware. She’s a student at the University of Vermont.

Kenall Ware: They didn’t meet the window of time to actually respond.

Sara Ganim narration: The documents she sought, fit squarely into the category of the kinds of records that students should be able to see.

Kendall Ware: It wasn’t anybody else’s, it was just my case, and any communication between athletic directors, basketball coaches, and the Title IX office regarding me in that case.

Sara Ganim narration: But the university responded by saying..

Kendall Ware: It was an email that was just like, “No, this is attorney-client privilege. We’re not going to release any of these records to you.” And then at the bottom there was some small thing that just said, “Because this is somewhat pertinent to you we’ll think about it for 45 days and then possibly release it to you, but we’re not going to commit to that.”

I haven’t received anything else from that office since I sent that email.

Sara Ganim narration: Two other students, at Louisiana State University, both told me that they also had trouble getting their own records.

Abigail Owens: When I submitted the FOIA request for the Title IX records only, she personally,

her name is Jennie Stewart. She emailed me and she said, “I received information that you filed a public records request for Title IX records. Since you are requesting your own records, you have access to your own student records.

Sara Ganim: That’s Abigail Owens. She shared with me LSU’s FERPA release form a document created by LSU for the very purpose of authorizing her attorney to see her records.

Sara Ganim: Did you get those documents?

Abigail: Never. Like, they said that there were no documents they could get me. 

Sara Ganim narration: Another LSU student, Samantha Brennan, told me that she couldn’t even get the police report that she herself filed after she alleged she was assaulted.

Samantha Brennan: I went and made a police report after the incident with LSUPD. And so the first step was trying to get that report, and so that’s what I’ve been trying to do.

Sara Ganim: The police report that you filed?

Samantha: The police report, yeah, since August.

Sara Ganim narration: She told me, the records officer at LSU.

Samantha: She was like, “Oh, I’m having trouble finding it so let me call you back.” I called multiple times that day. She just gave me a huge runaround. 

And it was only after, I mean, weeks of runaround and they were ignoring my calls. I have a Minnesota area code and I would call twice a day, no answer. And so finally I used my fiance’s phone number whose got a California area code. She picked up on the first dial. So I knew she was purposely ignoring me, screening her calls. So she was really blindsided with that phone call. And so that day I did get an initial report. All it said was two sentences of somebody had taken a picture of me without my consent, but that was not even close to the full thing.

Sara Ganim narration: If you went to college, you know that there is an emotional relationship that many students have with the schools they attend. There is a pride in the institution that you are a part of and an assumption that the feeling is mutual that the school is looking out for you, protecting you caring about you the same way that you care about it. 

I asked these women. 

Sara Ganim: When we sign up for college, I guess, there’s an unspoken rule that they’re going to look out for us and protect us and be there for us during these four years of growing and learning, and becoming adults. And I just wonder if you guys feel like that happened?

Abigail: For me, I feel like I was failed in more ways than just this one by my institution. I didn’t feel valued as a human being for a second that I was there.

Sara Ganim: This was an additional kick in the teeth. Like okay, come on, not only you failed me once and now it’s just going to continue happening. Am I overstating that?

Samantha: No, not at all. Not for me at least.

Kendall Ware: Yeah. I agree with that. And to answer your question, one thing that I really struggle with is UVM, University of Vermont presents itself as such a liberal progressive school. 

So, when I was going forward with reporting this, I had my doubts just in general about the whole process, but I felt better knowing it was UVM, and it’s this liberal place where students are supported. And going through this process has really shown me that it’s all a facade and it’s not what it’s actually like.

Sara Ganim narration: What Kendall is saying is not just about the University of Vermont. I have heard that sentiment over the years from students at universities far and wide. North, South, East and West. Big and small, liberal, conservative, and seemingly neutral.

Too often, when university officials are confronted with a choice to reflect inward or to blame outward, they choose to blame outward.

As Kendall Ware put it…

Kendall Ware: From reading the email what it sounded like was because they wanted to protect themselves and to make sure that the things that they did incorrectly didn’t fall into the wrong hands, I guess, and that it didn’t publicly embarrass them. And that I didn’t have access to the things that they did wrong, if that makes sense. 

Sara Ganim: You felt like they didn’t want you to see what was going on behind the scenes of your own case?

Kendall Ware: Yes. I know there’s been communication with my case personally, back and forth between the Title IX office, and the athletic office. So I felt like they did not want that to be seen and to be in my possession.

Unfortunately, this is exactly how I expected them to respond based off of how they’ve handled my case. I did not expect them to actually release my records to me. I wasn’t surprised if that makes sense. They met my expectations.

I feel I deserve to know what my athletic administration as a student athlete myself is saying about me. And how the communication between the athletic department and the Title IX office operated.

I deserve to know what is being said about me and other students have that right as well, too.

Sara Ganim narration: Attorney Karen Truszkowski told me that these cases, keeping students from seeing their own records, are no longer unusual. 

Karen Truszkowski: I started seeing it back in 2018, really, is when I really started thinking, something isn’t right here. And my thought process has been reinforced as I see it in so many different universities. I think it’s gotten worse because of the focus on addressing sexual assault and violence in the universities, and they’re trying to protect themselves.

Sara Ganim: You mean because more journalists are writing stories, more survivors are speaking and speaking more freely, you think the universities are circling the wagons?

Karen Truszkowski: Yes, exactly. Because it’s only been in the last three, four, five years that we’ve seen this uptick in women and men coming forward and saying, “This happened to me,” and addressing it and pushing it. And I think circling the wagons is a good way to phrase it. They’re being very careful about what they disclose and trying not to have to disclose anything if they don’t have to.

Sara Ganim: From a legal perspective, are they breaking any laws by not sharing these documents with survivors?

Karen Truszkowski: I would say yes. I see violations. And it’s kind of a simple explanation, you have a right to your own records, and it should not be so difficult to get them, and they make it so difficult, and to the point that people are scared to ask. 

Sara Ganim: FERPA was created for this exact reason to give students access to their records.

Karen Truszkowski: Exactly. But they’re still making it so difficult. And I’ve seen it personally myself when I go with two. I’ve had clients that have tried to get their records and couldn’t, and I would actually go with them to request the records so that I could see what was happening. I’ve seen…

Sara Ganim: What happened when you did that? Can you give me some examples of what happened?

Karen Truszkowski: Sure. I went with two clients to a university here in Michigan to request records from the counseling department and the sexual assault advocacy center in the university. Went to request records. “Well, why do you want them?” And we would explain, “That’s really none of your concern why we want them.” As soon as they would find out that there was an athlete involved in the case, all of a sudden the attitude completely changed. And at one time that I was with a client, we were actually taken in a back room to meet with the quote on quote director, so that she could talk to us about why we wanted the records.

It was very intimidating. And I can’t imagine how it would have been for my client if I hadn’t been with her. This is someone that’s been sexually assaulted and just wants their counseling records. And I felt like we were being interrogated. And eventually we were told, “Well, we can give you your records. But first we have to get a release or whatever consent from the general counsel’s office.” So we knew that the records went over to the general counsel’s office. And eventually we-

Sara Ganim: Is that actually right? Do they actually… Can they keep a student from their own records for that reason?

Karen Truszkowski: That’s a very good question. I don’t think so. They’ve never really given me an explanation as to why that took place. And when I’ve asked them about like, “Okay, so what if a student has a broken ankle and they go to the student physician or whatever, and their ankle’s treated, and then they need surgery later. They need those records sent to their orthopedic surgeon. Are those records sent over to the general counsel’s office before they’re released?” I don’t think so. It’s only when it involves a sexual assault. 

And what I’ve seen, if it involves an athlete or some other prominent person, that it goes to the general counsel’s office.

Sara Ganim narration: Other attorneys I spoke to, they echoed this. That often they have to resort to a subpoena to get records on behalf of her clients. 

Karen Truszkowski: I’m just going to say, that’s absurd. If a student wants their own records and they don’t have the capability to sue for whatever reason, and you’re not going to get their records. Yeah, that’s very frustrating. And I have run into that.

Sara Ganim narration: And even when they do have the means to strong arm universities through the power of the courts, the FERPA record is suspiciously light, meaning, it doesn’t include everything you’d think it might include.

What do I mean by that? Well, if a journalist asks for surveillance footage, or emails, internal reports, memos, we often get the “FERPA” answer. 

But when a student asks for his or her own FERPA record, often, none of that stuff is in there. 

Karen Truszkowski: Emails are not necessarily considered part of someone’s academic record or their jacket, as they say. That may not necessarily be a typical thing that would be in there.

Sara Ganim: Is that they call it, the jacket, can you explain?

Karen Truszkowski: Sometimes. Sometimes you’ll hear them say, “It’s a student’s jacket,” like their profile, they refer to it. But yeah. You asked me what’s typically in their file, in my experience, if we asked for an academic record, we get their transcript and that’s pretty much it. Don’t get anything else. We have to clarify if there’s other things that we want that’s outside of their academic record, like emails, things like that.

Sara Ganim narration: The one student who I spoke to who did eventually get her record told me…

Cornell Student: I was definitely expecting there to be a lot more material, and I honestly feel like there is a lot more out there that they just did not include.

Sara Ganim: What was in your FERPA record? Generally speaking, what kinds of documents were in there?

Cornell student: Despite being over 6,000 pages, it really wasn’t anything new, and it really wasn’t very far reaching. They had my initial Common App and essays and things like that, that I had submitted with no discussion. There were no emails related to that or anything like that. And then there were a couple hundred pages that related to my financial aid discussion, which mostly included just emails back and forth between me and the financial aid office as I was negotiating loans and things like that, keeping them updated.

And then finally, the majority of it actually was just all the documents related to Title IX. And so, it was only the evidence that I’d already seen, and any emails that I had back and forth with the Title IX office, which of course I already had. So there was nothing in there that was mentioning me without actually being directed towards me.

Sara Ganim: What did you expect? What were you guys hoping to get when you asked for your FERPA record?

Cornell student: I personally thought that they were obligated to provide anything that mentioned me, any discussion. So I was expecting to see at least something from the hearing panelists, any sort of discussion. I don’t know, I would assume this would be available as discussions on the backend, by the investigators who were going through the case, because they made some interesting decisions. They had closed the investigation, then decided to reopen it. So I was expecting to see things along those lines of why they decided to reopen it, how they decided that they needed to interview more witnesses, and things like that. I was expecting to see discussion around scheduling the hearing, because I felt like that was directly related to me, because they basically went ahead and scheduled the hearing, the Title IX without really taking my dates into account. In fact, I don’t think I had even sent them what dates I was available. So that required me to take off work and all those things. I was expecting to see something related to that. I was expecting to see just any email that really mentioned me.

Another thing that I know had been sent was that because me and the accused in the case were in the same class, they had told me that they had communicated to the professor of that class, that there was an ongoing Title IX altercation between two students. I don’t know if that was actually ever sent, because the professor never reached out to me and never really acknowledged that that was ongoing. But I am curious if that information was ever actually sent to him.

Sara Ganim: This is going to sound kind of out there, but were there any mentions of anything related to surveillance photos or video of you?

Cornell student: No. That was something that I had also sort of expected to see, but there was nothing, there was no record. For example, I lived on campus and I know that they have access to see how many times you swipe in and out of your building, and at what times. I was expecting to see something along those lines, but I didn’t see anything related to surveillance or my movements or my meal plan, anything like that.

Sara Ganim: So just to go back to what an academic record is though. The intent of the law was to allow them to see communications between faculty, and staff at a school.

Karen Truszkowski: Oh, I don’t disagree with that at all. I’m just saying typically, if there’s emails going back and forth about a student, I don’t typically see that they put those in the student’s academic record. I don’t see that. I’m not saying that they don’t belong there. I think they do, but I don’t think that’s a standard practice.

Sara Ganim: There seems to be a thread throughout our reporting in higher ed, which is just the immediate reaction to everything is secrecy, and especially, at public universities, which is baffling, because it seems to go against their own mission. But their default is to be secret.

Karen Truszkowski: Yes. 

Sara Ganim: Even if they’re not hiding something, even if there’s nothing to hide, even if they did

nothing wrong, they just default to secrecy.

Karen Truszkowski: That is a good way of putting it. And that’s my feeling exactly is that as a default, and they can’t get past it. We can’t let anything out. We have to keep it inside. And for all practical purposes, I guess we understand why they think that way, but they’re not allowed to think that way. It’s wrong. And the people that are suffering for it are students, 18, 19, 20-year-old kids that just want their records, and they get the runaround. The clients call me and tell me, “I’m afraid to ask for my records, because I know what happened to so-and-so when they asked for their records. I don’t want to deal with that.” And it’s not the way that it should be at all.

Sara Ganim: Quite the opposite.

Karen Truszkowski: Quite the opposite, yes.

Sara Ganim narration: There are so many FERPA ‘horror stories’ that it’s nearly impossible to get into all of the times that headlines have emerged about it’s abuse. 

In fact, I could have made a ‘FERPA is broken’ argument in many of our previous episodes, and some of the future ones, too. 

Hazing, concussions, weapons brought to campus, you’ll hear all about how frustrating that is in an episode in the near future.

In all of these, we saw instances where universities denied us information, wrongly citing FERPA. 

And I want to make the point, it’s not uncommon. It’s quite the opposite. 

Joseph Hastings reading a report from Buffalo News : In Brocton, New York, school officials refused to release surveillance footage of a game where a 16-year-old football player died, citing FERPA.

Camille Respess reading a report from Valdosta Daily Times: Video could give answers about how a Lowndes County, Georgia teen died in his high school gym, but school officials are keeping it from his family, citing FERPA.

Marianna Faiello reading a report from Tennessean: Tennessee State claims they can’t say anything about an employee arrested for embezzling student financial aid…

Brittney Miller reading a report from LJworld: Details of hazing at University of Kansas.

Tori Whidden reading a report from Michigan Daily: Disciplinary action against University of Michigan football player expelled for sexual assault.

Joseph Hastings reading a report from Daily Emerald: Student government campaign contribution records at the University of Oregon.

Camille Respess reading a report from Daily Advance: Details about a settled lawsuit, even the name of the student’s attorney.

Marianna Faiello reading a report from Dispatch: Statistics are being withheld by the Ohio Department of Education.

Brianna Edwards reading a report from Daily Bruin: By UCLA .. about the hiring of graduate students

Joseph Hastings reading a report from Johnson City Press: About concussions at East Tennessee State.

Tori Whidden reading a report from ClickOrlando: About how many students were banned from graduation at an Orlando High school

Marianna Faiello reading a report from KUSPORTS: Of a Kansas University football practice filmed by ESPN

Camille Respess: citing FERPA 

Joseph Hastings citing FERPA 

Tori Whidden: citing FERPA 

Marianna Faiello: citing FERPA 

Brittney Miller reading a report from KETV: Citing FERPA…omaha schools won’t say what discipline bullies received, even without names

Camille Respess reading a report from Boston Herald: Citing privacy laws …school officials resisted a victims bill of rights for bully victims 

Joseph Hastings reading a report from Ocolly News: Oklahoma state didn’t tell police about a serial rapist who was at large in the community

Marianna Faiello reading a report from Chicago Tribune: An Illinois college won’t even say where the rapes happened

Brianna Edwards reading a report from Daily Camera: CU-boulder won’t say whether a convicted rapist is still at the school or not

Tori Whidden reading a report from The Lantern News: Ohio State won’t say whether 3 rapes resulted in any disciplinary action.

Brittney Miller reading a report from the News Observer: whether a North Carolina man charged with sexting a child can keep his student-teaching job.

Camille Respess reading a report from the Free Press: Minnesota college delays sending out alert about rape for 2 weeks.

Joseph Hastings reading a report from the FlagPole News: Georgia High School waited a month to inform the public about an on-campus rape.

Marianna Faiello reading a report from Fox 17 News: Michigan didn’t tell families that an employee was accused of raping a student until after she was later murdered … 

Camille Respess: citing privacy.

Joseph Hastings: citing FERPA. 

Marianna Faiello: citing a federal students privacy act known as FERPA

Sara Ganim narration: We did find one example where a judge sanctioned Northern Kentucky University for frivolously using FERPA to instruct coaches not to answer questions at a deposition in a sexual assault case. 

The school officials tried to argue that questions about when the coaches learned about the alleged assault, and what they did about it are, quote “FERPA information.”

The judge found that argument to be frivolous, and sanctioned them, ordering the coaches to talk.

We’ve spent almost 10 episodes focused solely on higher education. 

We’re now going to switch gears and spend some time examining data deserts and secrecy at K-12 institutions.

The misuse of FERPA does a lot of damage at that level, too. 

Maybe one of the most egregious cases ever documented happened at an elementary school in Arkansas in 2015.

Why Don’t We Know reporter Camille Respess talked to the mother in that case. 

Brooke Moore: Um, it was the scariest day of my life. (nervous laugh). 

Camille Respess narration: Brooke Moore is a bakery owner in Cedarville Arkansas, where she lives with her husband and three kids. That’s where she was when I reached her on the phone and she told me how the misuse of FERPA almost cost her son his life.

Brooke Moore: We were at a school event, it was a, um, like, back to school bash slash, um, almost like a scrimmage game. They played a few rounds of offense and defense against each other. The high school and junior high football teams did. And my oldest son at the time was on the junior high football team.

Camille Respess narration: While Moore’s older son was playing football, her younger son, Zach, was at the adjacent playground with his friends.

Brooke Moore: And there was a park bench leaned up against a fence (sniffs) and Zach had ran up to the park bench and tried to do a pull-up on the bench, and when he did that it fell over on the top of him. And that’s, that’s where the accident happened.

Camille Respess narration: Zach was just 7-years-old at the time, weighing about 70 pounds. 

CBS5: A local family is trying to piece together what happened after their son was very badly

injured on a playground.

Camille Respess narration:  His injuries were so severe, skull fractures and brain swelling, he would spend two months in the hospital.

News5 Online: Seven-year-old Zach Moore’s family said his life changed while playing on the playground with other children at

Cedarville Elementary School

Camille Respess narration: But doctors didn’t immediately know what happened, and in trying to properly diagnose Zach’s injuries, they asked the Moore’s to get the school surveillance video of the playground, to figure out what exactly happened.

News5 Online: Now his parents say they are left wondering how this all happened. It’s hard to get the facts straight because we don’t

have all the facts.

Camille Respess narration:  The school district took the stance that the video surveillance was protected by FERPA, since other children were in the video. 

Brooke Moore: We needed that information the first couple of days of his accident, because we didn’t know, the doctors really didn’t know what all injuries he had. Especially the first twenty-four hours, because when Zach was on the playground, he had a few of his friends up there with him. And whenever the bench fell on his head a few of his friends actually lifted up the bench just enough and moved it down on his chest area, so when the ambulance got there, when we got into the hospital, at first everyone thought it was more of a chest injury. You know, they didn’t know if he could breathe, he was having trouble breathing anyways. You had low pulls, um, he had to be incubated, so at first they thought the injuries were more in the chest area. Just because of where the bench was actually laying when adults actually got up to the playground to see him. It wasn’t until later on, when they started doing some MRIs and other stuff that they realized he had a brain injury also, but they were still also trying to find out if he had other injuries in the chest area. And we were trying to get the video released, so we could see what happened so that the doctors would know what type of treatment he needed initially.

Camille Respess narration:  While their 7-year-old son lay in a coma in the hospital, Brooke and her husband had to hire an attorney and file a lawsuit against the Cedarville public schools, to try to get the information needed to help Zach recover. 

News5 Online: A judge ordered the district to release the video after the family filed a freedom of Information request lawsuit. Now they

have video of what happened to cause those injuries. 

Camille Respess narration:  Eventually, one full month after his injury,  a judge ruled in the Moore’s favor and the school released the video.  Zach was out of his medically induced coma by then, and was beginning to re-learn basic things, like walking, talking, eating, basic motor function. Brooke and her husband were learning something, too.

Brooke Moore: It was very, very hurtful because um, we’ve always been involved with a lot of things in our community and in our school district. It just brought a lot of unanswered questions to us that really should have never been there. 

Sara Ganim narration: We spent a lot of time talking  about the misuse of FERPA, but we also thought we should take a step back and look at what the law really intended to do.

Ford recording from signing of 1974 education act: I don’t believe anyone who labored so long and so hard would say this is a

perfect piece of legislation, but I think it’s a good law.  

Sara Ganim narration: That’s next time … on Why Don’t We Know

This episode was written and produced by me, Sara Ganim, with additional reporting by Camille Respess. and Marianna Faiello.

The associate producer is Tori Whidden.

This episode was edited by Amy Fu and James Sullivan.

Music for this episode was composed by Daniel Townsend.

Audio mixing was done by James Sullivan.

The executive producer is Frank LoMonte.

‘Why Don’t We Know’ is a production of the Brechner Center for Freedom of Information at the University of Florida.

A special thanks to the Hearst family foundation for proving the grant money that supported this reporting.

For more information, please visit our website at www.whydontweknow.org.