The University of Michigan is using what it calls its own interpretations of privacy laws to keep student investigators and media from understanding why it took four years to expel Brendan Gibbons for violating the school’s sexual misconduct policy.
The university, however, has not disclosed what those interpretations are, or if they are a written internal policy.
A football player's expulsion, four years after the original allegations
Gibbons was a red-shirt freshman football player when he was arrested for allegedly raping a fellow student at a fraternity party in 2009. But the case was closed when the alleged victim did not follow up with police to press charges.
At the time of the allegations, the university’s sexual assault policy required the alleged victim to file a claim with the school, in order for the university to pursue an accusation.
That’s according to a student council-led task force report out this week, which also notes that if the case went to the school’s hearing panel, “the survivor would be required to both present evidence and testify.”
But the policies changed in April 2011, when the U.S. Department of Education began requiring federally funded schools to promptly investigate harassment claims, even if those claims are submitted by a third party.
On Nov. 17, 2011, a retired University of Michigan professor of pathology, Douglas Smith, submitted a public letter to U of M President Mary Sue Coleman asking her to review the police reports filed about the alleged Gibbons assault and take action.
According to the Department of Education's Office of Civil Rights, "a typical investigation takes approximately 60 calendar days following receipt of the complaint," adding that can vary "depending on the complexity of the investigation and the severity and extent of the harassment." It wasn't until December 2013, two years after Smith's complaint was filed (and also Gibbons’ final year of eligibility on the football team) that the university decided Gibbons' 2009 actions had violated the school's sexual misconduct policies to such an extent that it would take the rare step of expelling him.
Is the university wrong about what federal privacy laws protect?
The student-led task force was chiefly focused on whether the school delayed or dragged out its investigation into Gibbons.
But figuring that out became impossible because, according to the report, the university wasn't talking.
The school "failed to explain the four-year delay between Brendan Gibbons' conduct and the permanent separation," the report claims.
They're hardly the first to be frustrated with the scarcity of information coming out of the university about the Gibbons investigation.
On Jan. 31, 2014, the Michigan Daily published an editorial titled "A Shameful Response."
"The university’s recent behavior in response to Brendan Gibbons’ expulsion is deeply suspicious ... administrators have invoked a number of furtive internal policies and vaguely interpreted laws to explain its silence."
Those privacy laws are called the Family Education Rights and Privacy Act, or FERPA.
In the Department of Education's own words, FERPA is a:
"Federal law that affords parents the right to have access to their children's education records, the right to seek to have the records amended, and the right to have some control over the disclosure of information from the records."
Basically, it's designed to give students confidentiality when it comes to their educational records.
But there's a big exception. FERPA doesn't apply when it comes to:
"...the final results of a disciplinary proceeding related to a crime of violence or non-forcible sex offense if the student who is the alleged perpetrator is found to have violated the school's rules or policies. The disclosure of the final results only includes: the name of the alleged perpetrator, the violation committed, and any sanction imposed against the alleged perpetrator. The disclosure must not include the name of any other student, including a victim or witness, without the written consent of that other student.
In other words, the minute Gibbons was found in violation of the university's sexual misconduct policies, FERPA stopped protecting at least a few key things: his name, his violation, and the sanctions he faced.
He was expelled in December 2013, according to documents obtained by the Michigan Daily.
But the University of Michigan did not publicly disclose any of this information until it was reported by the Michigan Daily in January 2014 – almost a month later.
The university has privacy policies, but they won’t say what they are
In January, university spokesperson Rick Fitzgerald reportedly told the Daily that those internal policies "are more restrictive than FERPA."
But when the student-led task force asked to see those policies, "university officials failed to produce written privacy policies preventing the disclosure of these communications since policies regarding student records are almost copied verbatim from FERPA," the report reads.
Student task force members say they even "offered to sign a confidentiality agreement, allowing the University to disclose" more information about the Gibbons investigation, but that offer was denied.
Michigan Radio asked Fitzgerald by email to clarify the U of M's interpretation of the FERPA exception.
We also asked for clarification as to what internal policies the university is relying on in this case, and asked for written copies of the policies if they exist.
This was the response Fitzgerald emailed:
"We appreciate that Central Student Government takes the issue of sexual misconduct seriously, as do we. We hope the CSG's focus on these issues will lead to greater awareness of the student sexual misconduct policy and even more survivors coming forward."
"As you know we have remained consistent with the long-standing university practice of not publicly discussing the details of student disciplinary matters."
"Regarding FERPA: While the law allows the university to release very limited information (the final result of disciplinary proceedings) in some types of proceedings, the law does not require the university to release that information.”
The U.S. Department of Education is currently investigating how Michigan handled the disciplinary process surrounding Gibbons.