An article ran today on MLive, and I felt the need to respond, mostly because it was bullshit. The article was entitled "U-M stymies student governmen's review of Brendan Gibbons sexual assault investigation." I don't want to call it a hack job, but it has several hack marks as if somehow hacked at by a hacking device.
University of Michigan's student government wants to review the school's sexual assault investigation involving ex-football player Brendan Gibbons — but U-M has refused to disclose investigation documents.
They confuse "has refused to disclose" with "is legally prevented from disclosing." We've been through this, but FERPA (20 USC 1232g) is a federal law that prevents the disclosure of any "education records" to anyone that does not fall into one of the exception categories without the permission of the student.
Education records are defined as "those records, files, documents, and other materials which (i) contain information directly related to a student; and (ii) are maintained by an educational agency or institution or by a person acting for such agency or institution." Investigation documents pertain to a student (Brendan Gibbons), and were created and maintained by the University. They are educational records.
The CSG (the student government) does not fall under any of the exceptions that would allow UofM to release records to them. The closest exception is 1232g(b)(1)(A), which allows the release to othe "school officials" with a "legitimate educational interest" [ED: see the update below]. But the CSG is not a school official (nor are its officers), and they have no legitimate educational interest.
So, as a matter of federal law, Michigan cannot release investigation documents to the CSG. Full stop.
The Central Student Government and U-M administrators disagree about whether student government should be given access to investigation documents.
"It's a little disappointing on our end," said CSG president Michael Proppe, a senior statistics major. "A review would have provided transparency about this process."
The whole point of FERPA is to prevent 'transparency" with student records. But we'll get back to that later.
CSG believes it has the right to review the investigation due to a provision in U-M's student discipline code allowing a CSG representative to review discipline cases.
U-M's Statement of Student Rights and Responsibilities reads:
"Periodic, regular review of records of resolution actions will be made available, in confidence, to the Code of Conduct Advisory Board Chair of CSG."
But U-M is refusing to provide access to the investigation documents.
Okay, a quick primer in Federal law: it trumps the U-M Statement of Student Rights and Responsibilities. It trumps it by a lot. Like the Right Bower trumps an off nine. So even IF this was the subject matter to which the Statement referred, it doesn't matter. Federal law wins.
The school has again cited student privacy and also maintained that under revisions made to the sexual misconduct policy in 2011, sexual misconduct reviews no longer fall under the Statement of Student Responsibilities.
Cool. And irrelevant. If the investigation records fall under FERPA (they do), then it couldn't matter less for the present case if they are included in the Statement of Student Responsibilities.
"We aren't making those reports available," U-M spokesman Rick Fitzgerald said.A review would have provided transparency about this process.
"We've maintained all along that case-specific files and anything that would be an investigation report are considered to be educational records protected by the Family Educational Rights and Privacy Act, so we cannot share those with the CSG taskforce," he continued. "The new policy on sexual misconduct, it's really not part of the Statement of Student Rights and Responsibilities, but it's a separate policy referenced in the Statement. Sexual misconduct doesn't apply to that [CSG] review."
What he said.
In September 1991, U-M's student government investigated an Ann Arbor Police Department tear gas incident; in January 1992 it looked at U-M's interim policy on discrimination and discriminatory harassment; and in 1997 it reviewed allegations of excessive force by U-M Department of Public Safety officers following a football game.
You know what all of those have in common? They aren't investigations of STUDENTS. You can review the records of officer so-and-so or review policies until you're blue in the face without running into FERPA. You can also review those records without any knowledge of the students involved. You can't, however, say, "HEY, GIVE US ALL OF THE GIBBONS RECORDS" and then pretend to redact the name of the only guy it could possibly be.
Proppe said student government has also reviewed past sexual misconduct investigations, although not recently.
I question this
[ED: Michael Proppe contacted me, and told me that they do have a file of previous investigations. The difference is that the records have the names redacted. Once the records are identifiable as being Student X's record, they are protected. Props to Michael for the clarification. Get it? Props? Proppe? /Shrugs, leaves room.]
"We certainly disagree with the university's interpretation," Proppe said. "The university main concern is 'Was this going to violate the privacy of individuals involved?'
That's not the case, Proppe asserted, saying CSG intends to maintain student privacy and confidentiality.
Cool, but that really doesn't matter. Michigan can't tell the federal government "we know you said not to disclose this, but they promised they wouldn't tell anyone else." There is NO provision for these records to be disclosed to other entities if they pinkie-swear not to further disclose it.
Plus, you're selling this entire thing as "transparency." How can you say you're trying to make the investigation transparent while simultaneously declaring that you won't reveal anything?
CSG has commissioned a law firm to consider U-M's refusal to turn over investigation documents.
Hey, look, I just saved you a bunch of money.
Bottom line, there are a bunch of open questions for the University and the Athletic Department on this issue. But when people focus on the stuff that the University categorically cannot do, it distracts from the stuff onto which we actually SHOULD be trying to shine a light. And to say the University is somehow "obstructing" this student government investigation through the failure to turn over investigation records is, as they say, crap.
UPDATE: After a conversation with Clarence Beeks (who, frankly, seems like more of a Corporate/Securities Law expert (watch good movies, people)), I felt I should include the following info.
Because the statute does not define "school official", that definition is left to the University, and the University must give public notice of that definition. Michigan's definition is as follows:
A University official is any person employed by the University in an administrative, supervisory, academic, research, or support position; a person elected to the Board of Regents; a student or a University graduate serving on an official University committee or assisting another University official in performing his or her tasks; or a person employed by or under contract to, or serving as the agent of, the University to perform a specific task.
The CSG is not an "official University committee," a list of which can be found here. It is, by its own description, a student organization. Its members are chosen by the student body, not the University, and it performs no designated University function. Further, the definition of "legitimate educational interest" is as follows:
Legitimate educational interest is the need to review an education record in order for a University official to carry out his or her responsibilities in regard to performing an administrative task outlined in the official's duties, or performing a supervisory or instructional task directly related to the student's education.
(Emphasis mine). Even if we're somehow assuming students on CSG are officials, reviewing such cases is almost certainly not part of their outlined duties.