By joining forces with outsiders, media win access to campus crime records

Tuesday, May 19, 1998

Media groups are happily embracing the Foley Amendment, even if its passage was the result of a one-night stand.

While politics surely has seen stranger bedfellows than the Society of Professional Journalists, the Student Press Law Center and Security On Campus, Inc., this novel alliance helped produce an open records bill that only months ago seemed nearly impossible. With Rep. Mark A. Foley, R-Fla., leading the way, the U.S. House of Representatives recently voted unanimously to require universities to release the names of college students who commit violent crimes. If the Senate follows suit, as is expected, the law could take effect before the end of the year.

The Foley Amendment scales back the Buckley Amendment (also known as the Family Educational Rights and Privacy Act), which was passed in 1974 to prohibit schools from releasing student educational records without consent. Since the Buckley Amendment was adopted, many courts and universities have interpreted “educational records” to include student disciplinary records. As a result, universities have been able to resist media efforts to report on students who commit crimes on campus. The Foley Amendment, however, provides that disciplinary records concerning violent crimes are not educational records and that universities may release them without student consent.

The Society of Professional Journalists, the Student Press Law Center and other media organizations have for years challenged the universities’ broad interpretation of “educational records.” In the media’s eyes, universities have used the Buckley Amendment to prevent disclosure of campus violence that would tarnish the schools’ reputations and frustrate their recruiting efforts. The universities, on the other hand, have argued that their internal disciplinary processes will not work effectively if the records of these proceedings are made public.

Until Security On Campus, Inc., joined the debate, the universities usually won this argument. Security On Campus, Inc., is a campus violence prevention group that was founded in 1987 by Howard and Connie Clery after their daughter was brutally raped, beaten and murdered at Lehigh University. Unlike the media organizations, this group could directly and effectively frame the issue as one of campus safety and victims’ rights. The privacy justification that had withstood the heated efforts of the media to obtain this information quickly melted away when pitted against these more politically popular causes.

Regardless of how it came to be, the Foley Amendment is good legislation. By permitting the disclosure of records related to violent crime—and only such crime as the student either has admitted to or has been “convicted” of through the disciplinary process—it strikes the proper balance between the public’s right to know and the student’s right to privacy. A student who commits a violent crime on campus surely waives whatever privacy rights the Buckley Amendment intended to bestow.

A perhaps unintended benefit of the Foley Amendment is that it may discourage universities from attempting to punish violence outside of the criminal justice system. One of the rationales offered for the broad interpretation of the Buckley Amendment has been that the disciplinary process’s promise of privacy has encouraged students to report violent crimes, such as date rape, that they would not feel comfortable reporting to law enforcement authorities. Serious allegations such as these, however, need to be investigated by professionals and, if necessary, tried within a system that guarantees the right to counsel, the right to cross-examine witnesses and a heavy burden of proof.

A student disciplinary process should be limited to the purpose for which it was created: to investigate and sanction allegations of academic cheating, disorderly behavior and other minor violations of a university’s code of conduct. Amateur investigations and “prosecutions” of violent crime are too risky for all involved. Faulty investigations may result in guilty students going unpunished and innocent ones being expelled. While an unfair expulsion is not as severe as an incorrect criminal guilty verdict, the student expelled is forced to carry that expulsion on his or her academic record forever.

Another unintended benefit of the Foley Amendment is that it has reinforced an important lesson for the media: that political alliances with non-media groups are often necessary to obtain crucial legislation. Many of the access-to-information issues facing the media today—anonymous juries, closed judicial proceedings and legislative efforts to prevent the disclosure of various types of information—could be resolved in Congress or in state legislatures as easily (and perhaps more easily) than through the courts.

Unfortunately, the media are too unpopular to expect much political success on their own. As the passage of the Foley Amendment shows, however, the interests of media and non-media groups can coincide to create favorable legislation. On these important issues, the media should not hesitate to find bedfellows such as Security On Campus, Inc., even if only for one-night stands.

Douglas Lee is a partner in the Dixon, Ill., law firm of Ehrmann Gehlbach Beckman Badger & Lee and a legal correspondent for the First Amendment Center.