The need to know

By:
02/13/2003

Debbie Shick never imagined that the student found responsible for her son David’s death would not be severely punished. She never imagined that the University would allow that student to stay at Georgetown, continue playing soccer and graduate with his class.

When Georgetown junior David Shick (MSB ‘01) died from injuries sustained in a fight with another student in Feb. 2000, Mrs. Shick thought that the University would help her through the grieving process by allowing her to participate in the adjudication of the student responsible for David’s death. At the very least, Mrs. Shick thought she was entitled to know the sanctions imposed on that student.

But Georgetown maintained that, in accordance with the University confidentiality policy, Mrs. Shick and her husband Jeff could not find out the resulting sanctions unless they agreed to tell no one else.

Until five years ago, a 1974 federal law, the Family Educational Rights and Privacy Act, required that the University implement this confidentiality agreement. In 1998, an amendment allowed universities and colleges to release information concerning crimes of violence.

But Georgetown maintains that the results of all disciplinary hearing should be kept from the greater campus community.

The University asserts that its mission is to provide the best possible education environment possible for the individual student. Like his or her grades, a student’s disciplinary record should not be made available for public scrutiny.

Many individuals who have either been directly or indirectly affected by campus judicial processes-such as the Shicks-believe quite the opposite. Not only do they argue that the public disclosure of certain respondents’ names and sanctions is beneficial for the overall security of the campus community, but they also suggest that this publicity could aid in deterring future violations. In cases involving violations such as sexual assault, the victim’s need to discuss the incident as a part of the healing process is also used as a reason for disclosure.

Opponents to the confidentiality policies of universities such as Georgetown question why institutions choose not to disclose the information allowed under the 1998 amendment. For many victims and their family members, the restriction on disclosure is far too inflexible.

When Mrs. Shick first read Georgetown’s confidentiality agreement, she asked University counsel if she could still tell David’s two younger siblings what had happened to the student. She was told she could not.

“I knew right then I wasn’t going to sign it,” Mrs. Shick said. “It seemed so outrageous.”

Mrs. Shick said that she and her husband were led to believe that federal law prohibited the University from disclosing the sanction imposed on the student. But when she researched the law, Mrs. Shick found that federal law allowed all universities and colleges to disclose information regarding violent crime on campus.

“When I checked back with the University, they said the confidentiality agreement was Georgetown’s policy,” Mrs. Shick said. “I felt that they had been trying to coerce my signature on that document.”

The Shicks never signed the confidentiality agreement.

In the course of a civil suit against the respondent, the Shicks learned the hearing board’s decision. The student found responsible for David’s death had received a sanction of a 10-page reflection paper and a suspension that never took place.

Judy Johnson, director of student conduct, oversees the University’s entire judicial process. As head of the Office of Student Conduct, Johnson’s job is to ensure that students abide by the University’s Student Code of Conduct. The rationale behind having a campus judicial process that tries criminal violations separate from a criminal court is that the campus process will punish the student in a way that it sees best fit for his or her educational experience. When a criminal charge is involved, a case taken through the campus judicial process will often not stand in criminal court due to insufficient evidence. The campus judicial process is not a replacement for a criminal trial; it is simply a way for the University to fulfill the full scope of its mission, the education of the ‘whole person.’

Johnson said that she did not believe that students who deal with her office are necessarily happy when they leave at the completion of the process. She did, however, believe that students leave feeling like their cases have been treated fairly, and that the process has been followed as it is laid out in the Student Code of Conduct.

“I can’t say people are happy with my office,” Johnson said. “I think people are sort of thrown off by my inability to take sides, but the system would be compromised if I acted on my feelings.”

During the spring of 2002, Kate Dieringer (NUR ‘05) reported to the Office of Student Conduct that she had been raped the previous fall.

As in the Shick case, when Dieringer met with the Director of Student Conduct Judy Johnson to find out the sanctions imposed on her assailant, Johnson had her sign a confidentiality agreement. Dieringer said she signed the agreement right away because “the whole point was to find out if I ever had to be around him again.”

“Johnson told me the agreement was part of federal law. She said that if I broke the agreement, I would be charged with ‘failure to comply,’” Dieringer said. “They tricked me into signing because they had abused me and lied to me and didn’t want anyone to know.”

According to Curt Martin, Dieringer’s boyfriend and a junior at the College of Charleston in South Carolina, Dieringer’s assailant was found responsible for the rape and initially expelled from Georgetown. After the assailant appealed the ruling, the sanction was reduced and he was suspended from the University for one year. He will return to Georgetown this fall.

Dieringer was not allowed to sit in on the appeals hearing and was later informed by Assistant Dean of Students Jeanne Lord that the sanction had been reduced because it was ruled to be too harsh. The University had never before dismissed a student for a first time sexual assault offense, according to Dieringer.

Three years ago, Blake McGee (SFS ‘03) arrived home to find that the words “STOP FAG STUFF” scrawled across a poster on his Village C West dormitory door. Only later did he find out that earlier in the week, several other signs posted on the floor advertising an on-campus play in which he was performing were similarly defaced with homophobic slurs. McGee, a Voice staff member, immediately reported the incident to the Resident Assistant on duty and was moved into the University’s emergency guestroom that night.

Approximately two months after the incident, McGee’s case was brought before the University’s judicial board. The morning after the four-hour long hearing, McGee was called into Johnson’s office and handed the confidentiality agreement.

“She handed me a form and said, ‘you have to sign it or we can’t tell you what happened,’” McGee said.

After a momentary hesitation, McGee decided his need to know the outcome of the hearing surpassed his need to share the information. He signed the confidentiality agreement and handed the piece of paper back to Johnson.

“I had misgivings about signing [the confidentiality agreement] because of the compromises I had to make, but I had to know whether or not [the respondent] was going to be here … whether justice had been served,” McGee said.

McGee said that, during his earlier meetings with Johnson, she had been very explicit about the confidentiality policy of the University, but never specifically mentioned FERPA.

“What was impressed upon me was that the [Office of Student Conduct] had its hands tied, and that it was bound to this policy, so if I wanted to be part of the process, I had to be bound to it too,” he said. “If I did agree and if I ever told anyone, it was impressed upon me that the equivalent of the wrath of God would be brought upon me.”

Though the specific repercussions he could face were never shared, McGee said that it was implied that he himself could be brought before the judicial board. “After having been through the exhausting judiciary process, for them to turn around and say that they would subject me to the same process just for sharing the results with people who had personal stakes in the process was appalling,” McGee said.

McGee says today that he has no regrets about signing the confidentiality agreement, even though many wanted to know the hearing’s outcome. “I had to know for my own peace of mind. It was a compromise,” he said.

To those who wanted to know, said McGee, “all I said was, ‘everything is going to be all right.’”

FERPA is designed to protect the confidentiality of student grades and other educational records. The 1998 amendment allows universities to legally release the final results of a disciplinary proceeding when the student is an “alleged perpetrator” of a “crime of violence” or “statutory rape or incest.” A “crime of violence” includes a wide range of crimes, including arson, burglary, kidnapping, rape and assault offenses.

According to FERPA, schools can release the name of the student about whom the allegation is made, the violation committed, the sanction imposed on the student and the names of the victim and any witnesses involved with their written agreement.

Despite the conditions set in the 1998 amendment, Georgetown only discloses disciplinary hearing results to a complainant if he or she first signs a confidentiality agreement.

Complainants who sign the agreement can only share the results with their parents and the individual who serves as their advisor. If shared with these individuals, they too become bound to the confidentiality obligations, though the Office of Student Conduct has no jurisdiction over these individuals.

Johnson said that she introduces the confidentiality agreement to the complainant early on in the judicial process. Johnson said that when a student first approaches her to report a violation, she explains the entire judicial process to the student, including the University’s confidentiality policy. The confidentiality agreement itself is not given to the student until after the hearing board deliberations are completed. The Office of Student Conduct first notifies the respondent of the board’s decisions. The complainant is then called into the office within 24 hours and presented with the confidentiality agreement.

“Far and away, most people sign the confidentiality agreement,” Johnson said.

If the complainant signs and subsequently breaks the confidentiality agreement, he or she is held accountable for a violation of the Student Code of Conduct and may be subject to disciplinary action.

Johnson, who has been at the University since 1995, said that she has never had to deal with an individual breaking a confidentiality agreement. If it were to happen, however, Johnson said that the resulting disciplinary action would be determined on a case-to-case basis.

“It would be very unfortunate,” she said. “The last thing I want to do is to go against a student.”

During the 2000-2001 school year, shortly after Shick’s death, the University reviewed its disclosure policy in response to the urging of several individuals and groups. This process was headed by the Student Affairs Disciplinary Review Committee, chaired by then Director of Residence Life Bethany Marlowe and comprised of graduate and undergraduate students, faculty, and Student Affairs staff, who gathered input on the issue from campus-wide forums.

Juan Gonzalez, vice president for student affairs, said that he received the DRC’s report at the end of the spring 2001 semester, in which the committee recommended that the University continue its policy of maintaining the confidentiality of hearing outcomes, even in those cases in which FERPA would permit public disclosure by the University.

“[The University’s judicial process] is not meant to be a legal adjudication process,” Gonzalez said. “The law gives us the choice [on whether to disclose the hearing outcomes], we as an institution ultimately arrive at the decision that the educational moment of our students is paramount.”

Gonzalez stressed the importance of differentiating between the University’s judicial process and the criminal court system. “We do not afford the equal protections and responsibilities that you would be provided if tried in a jury downtown,” he said. “[The processes] are not parallel.”

Gonzalez and Johnson both also described the University’s judicial process as one that places significant trust in the hearing board-composed of three students and two faculty members-to make its decisions based on the interests of all those involved.

Gonzalez said that the campus community, since it is not directly involved in the judicial process, needs to place “faith in our peers” to keep its interests in mind when weighing evidence and making its decisions.

In its report, the DRC also recommended that the University provide more information about adjudicated offenses and sanctions to the campus community in a newsletter published twice each academic year.

“The DRC wanted to address the overwhelming concern that the University doesn’t know what’s going on [with violations and sanctions],” Johnson said. “The DRC’s decision [to create a newsletter] is not exactly the one I would have made, but I think it adequately addresses the community’s concern.”

In the resulting newsletters, published by the Office of Student Conduct, violations are charted with the type of violation and the number reported in that semester. On the opposite page, the type and number of sanctions are similarly graphed, with sanctions for violations collapsed together. The newsletter does not indicate which sanctions match which violations.

“I don’t know what the overall community’s need is to know individual cases,” Johnson said. “[The publication of specific cases and their resulting sanctions] would not be as informative as people think. The main concern was to let the community know that the University does adjudicate.”

Johnson added that she did not believe that the publication of sanctions would deter future violations because most cases involved alcohol and did not seem to be pre-meditated.

According to Mark Goodman, executive director of the Student Press Law Center, complete disclosure serves an important public service. “It’s hard to argue that the public wouldn’t have an interest in the names of those who are found responsible for misbehavior,” Goodman said.

Goodman said that statistical reports, such as the newsletter published by Georgetown, are ineffective.

“Statistics alone are not adequate because they don’t tell people what the consequences are for engaging in certain types of misbehavior. That is an important deterrent,” Goodman said. “[With full disclosure] the public can engage in some form of oversight for those who are doing the discipline.”

Colleges and universities do not disclose disciplinary hearing results to avoid tarnishing their reputation, according Daniel Carter, senior vice president of Security on Campus, Inc., a non-profit watchdog organization. Not only can disclosure expose criminal activity, said Carter, but it can also expose a disciplinary system that “would not stand up to public scrutiny.”

Carter, who has worked closely with the Shicks and Dieringer, argues that public disclosure of disciplinary outcomes increase the security of campus communities. “Opening student disciplinary records to public scrutiny allows students to know if the person sitting next to them has been found responsible for committing a violent crime, an assault or rape,” Carter said. “Opening the results also allows students to know if justice is being administered fairly, and that serious misconduct, hopefully at least, won’t be tolerated.”

Johnson stands firm on Georgetown’s confidentiality policy. “I have a very strong belief in the need for things to be confidential,” she said. “I’m never going to fall out on ‘there’s a thousand people who have a desire to know’—it comes down to the validity of the need to know.”

Georgetown’s policy places it somewhere in the middle of the spectrum; most universities and college have similar disclosure policies.

But some some schools keep an even tighter lid on student disciplinary records than Georgetown. The University of Minnesota only informs the complainant about the outcome of a hearing on a “need-to-know” basis, said Betty Hackett, director of student judicial affairs for the University’s Twin Cities campus. According to Hackett, the hearing board often imposes several different sanctions on the respondent, and the complainant will only told the sanctions that directly affect him or her.

“We would tell the reporting party what they need to know for their part of it, if it has implications for them,” Hackett said. For instance, if a respondent is given a stay-away order by the hearing board, the complainant will be notified of this, she said.

Hackett said that if the Shick case had been tried at the University of Minnesota, Shick’s parents would most likely not have been able to find out the results of the hearing.

Hackett described the University of Minnesota’s reasoning behind its disclosure policy similarly to that of Gonzalez. “Our judicial system is tied to the educational mission of our institution,” Hackett said. “The system is to provide inquiry and assessment—[it] is not a substitute for the courts.”

The state of Georgia has a law requiring disclosure of all public documents. Georgia’s Open Records Act requires that public records, including educational records, be open for inspection by any member of the public. The purpose of the act is to provide access to public information and foster confidence in the government. The University of Georgia, as a public institution, must disclose the records from campus judiciary hearings—including names, violations and sanctions.

“I think disclosure has an educational purpose and deters future crimes,” said Jim Bove, assistant dean of students for Judicial Programs at the University of Georgia. “Students see all sanctions and hopefully our sanctions are strong enough that it would make them think twice about committing violations.”

Bove also said that disclosure “holds the [judicial process] accountable because sanctions need to be somewhat similar for similar crimes. However, we don’t have cookie-cutter sanctions. Every case is different.”

This past November, Dieringer filed a complaint with the U.S. Department of Education’s Office for Civil Rights. Students may file charges against their institutions on grounds of race, disability, sex or age discrimination. If the case is accepted, OCR can target the school’s federal aid or issue some other type of sanction. According to Dieringer, her complaint was accepted because Georgetown did not give her an immediate or effective response as a victim of sexual assault. While the OCR would not comment on the continuing investigation, Dieringer said the agency is currently deciding how they will sanction Georgetown, and at the very least will issue a reprimand.

After Jeff and Debbie Shick read an article in the Voice by Dieringer about her experience with the University (“The girl who whimpered rape, Oct. 24, 2002), they decided to publicize the sanctions placed on the student found responsible for the physical assault that led to David’s death.

“When I read what the University did to Kate, that was enough to move us to come forward,” Mrs. Shick said. “I feel very guilty that Georgetown misled Kate. If we had come forward immediately, perhaps Georgetown would have been forced to change their policies.”

Unable to continue fighting Georgetown and upset by what they consider light sanctions on student who commit serious offenses against other students, the Shicks are working with their Congressmen to change the FERPA amendment so that universities and colleges are required, not just allowed, to disclose disciplinary hearing results for crimes of violence.

“Silence and secrecy are wrong,” Mrs. Shick said.

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