By, Bill Schackner
June 2, 2015
One was a racist chant caught on video. The other involved nude photos of female students, some unconscious, posted online along with degrading comments.
Within days of each other, two big name schools, the University of Oklahoma and Penn State University, faced fraternity scandals that drew national scorn, promises by campus administrators to act decisively and decisions by both schools to shut down fraternity chapters.
Yet for all the similarities, these cases that surfaced in March are different in one key respect: what those schools have chosen to tell the public about any punishment imposed on individual members.
At Oklahoma, where the school’s president David Boren expressed a desire to send a message that racism will not be tolerated, a news release issued early on announced that two unnamed students had been removed from campus.
Mr. Boren even posted it to his official Twitter feed: “I have acted today to expel two students who were leaders in the singing of a racist chant,” he wrote.
At Penn State, officials won’t say if individual judicial proceedings have been completed, and those officials said that even if student code violations are found, no acknowledgement of actual punishments will be made publicly.
“Penn State is committed to maintaining the confidentiality of its student disciplinary records to the fullest extent possible by law,” university spokesman Reidar Jensen said.
Withholding the punishments is not sitting well with an organizer of a March rally on Penn State’s campus to support the women pictured in Kappa Delta Rho’s invitation-only Facebook page. State College police, who are conducting a criminal investigation, said the page had 144 active members including students and graduates.
“I don’t care what their names are,” said Lauren Lewis, 21, of Tyrone, Pa., who graduated last month. “If they broke the student code of conduct, I just want to know that something is happening to them.”
The universities each based their decision on the 1974 federal Family Educational Rights and Privacy Act. It protects privacy of student educational records, including campus judicial decisions that can be traced to an individual.
Critics say the law is worded so loosely that schools often over-apply it, keeping secret outcomes that do not identify an individual and material such as campus judicial statistics.
Over the years, Penn State has, without providing names, released totals of students who were suspended or withdrew from campus after destructive street disturbances. Mr. Jensen said it’s because “comparatively large numbers of students” were in the crowds. “In this instance, there are a limited number of students involved, so putting a number to specific sanctions, even if anonymously, could reasonably result in sanctions being paired with specific students,” he said.
But a Washington, D.C., group advocating for campus disclosure doesn’t buy that argument.
If a school says the fraternity’s president or vice president were suspended “then that’s immediately traceable,” said Frank LoMonte, an attorney and executive director of the Student Press Law Center. “But in a fraternity with several dozen people you could say ‘we expelled two people and suspended three others’ without violating FERPA.”
Catherine Bishop, a spokeswoman for Oklahoma, explained her school’s rationale for the disclosure: “We interpreted FERPA as prohibiting us from releasing students’ names, which we did not release, but that it does not prohibit us from releasing what kind of actions we have taken.”
Said Mr. Jensen from Penn State: “The University of Oklahoma’s interpretation of FERPA and due process varies from ours.”
New Orleans attorney Scott Schneider, a former Tulane University in-house counsel who heads the higher education practice group at Fisher & Phillips, said the privacy act is not the only ill-defined federal law. He said the idea that schools are motivated by image-protection is cynical and does not square with what he has observed.
“From practical experience, it’s almost frustrating not to be able to share [with the public] what was able to be done to an individual,’” he said.
His own take is Penn State’s interpretation was reasonable for a group as small as a fraternity. “If by disclosing information, could a reasonable person put 2 and 2 together and say ‘these are the people involved?’ Where do you draw the line?” he asked.
State College police said women in the photos who have spoken with investigators are undecided about pressing charges.