#NotAgainSU demanded last week that Syracuse University release the names of students found to be responsible for bias-related incidents. Doing so would violate federal privacy law, experts told The Daily Orange.

The Family Educational Rights and Privacy Act restricts how much information schools receiving federal funding can release about students. FERPA’s main focus is protecting student information from third parties.

The law generally prohibits universities from disclosing names of students who violate code of conduct rules. SU often refuses to comment on internal proceedings, saying “federal privacy law” restricts it from releasing information. Even when FERPA doesn’t apply, private universities can reject requests for information based on their own policies.

At least 30 racist, anti-Semitic and homophobic incidents have occurred at or near SU since Nov. 7. Chancellor Kent Syverud announced Monday that three students have been identified and held responsible for some of the incidents.

Frank LoMonte, director of the Brechner Center for Freedom of Information at the University of Florida, said FERPA only allows universities to release the names of students found guilty of violent offenses, such as sexual or aggravated assault.

“Racist hate speech would not fall into the federally defined categories of a violent crime or hate crime,” LoMonte said.

In #NotAgainSU’s latest list of demands, the movement urges SU to recognize bias-related incidents as “forms of violence.” Racist slurs and graffiti don’t warrant the release of student names under FERPA.

#NotAgainSU also demands the Department of Public Safety “file criminal complaints against all perpetrators of racial bias incidents.” A criminal complaint is a document filed in court that formally charges a person with a crime. Police departments cannot file criminal complaints or bring formal charges against individuals.

That jurisdiction falls under the Onondaga County District Attorney’s office. DPS doesn’t typically release the names of students charged with any crimes, but the Syracuse Police Department routinely does.

Few of the 30 reported acts of hate on or near campus amount to hate crimes under state law. New York state considers drawing or etching a swastika on public or private property aggravated harassment in the first degree. Three of the 30 incidents reported involved the drawing or etching of a swastika.

SU has announced conduct sanctions in recent years against students involved in high-profile cases.

The university initially suspended 15 students involved in filming racist videos in the Theta Tau fraternity house. Syverud said in November that four students in the Alpha Chi Rho fraternity were given interim suspensions for their involvement in a racist incident near College Place.

A university spokesperson declined to specify on Tuesday whether the four students in Crow remained suspended. Syverud has said three students received conduct sanctions for committing acts of hate, making it unclear if the Crow students are suspended. The spokesperson did not cite any federal privacy law for SU’s decision not to disclose that information.

As seen with Syverud’s announcement of the three students who received conduct charges, FERPA allows universities to release information when it can’t be used to identify an individual.

SU should be able to specify what incidents the three students were responsible for, LoMonte said.

“They should go further and say, ‘Here’s what the sanctions were,’” he said. “They’ve already made the decision that they can confirm that discipline happened, and that’s not a FERPA violation.”

Some schools take advantage of FERPA by using it as an “all-purpose excuse” to not release information, said Mike Hiestand, senior legal counsel at the Student Press Law Center.

“It’s a very convenient thing to just pull out this nebulous reference to federal privacy laws,” Heistand said. “It has been a real easy way to get out of disclosing information they simply don’t want to disclose.”

There are few significant consequences for universities that violate FERPA, Heistand said. A consequence outlined in the law is a full withdrawal of federal funding — a punishment he described as “draconian” because of how unlikely it is.

Amelia Vance, director of education privacy at the Future of Privacy Forum, said universities can release aggregate numbers of incidents and conduct charges if the information can’t be traced back to an individual. Public transparency outweighs FERPA protection in these cases, she said.

The U.S. Department of Education’s definition of “personally identifiable information” can sometimes make navigating the law trickier, Vance said. In some cases, universities could violate FERPA by announcing conduct charges that can be traced back to an individual even without their name.

#NotAgainSU protesters have claimed SU violated FERPA by notifying their parents that they were suspended. FERPA allows universities to disclose information to parents of adult students when there is an imminent threat to that student’s safety or the safety of other students. It also allows disclosure to parents who list students as dependents on their taxes.

The safety exemption has been interpreted as either a possibility of suicide or a student harming others, not for crimes like trespassing, LoMonte said. Under FERPA, SU could only notify protesters’ parents if they were tax dependents. That information is provided to universities through standard financial aid forms.

FERPA ultimately protects both good and bad student actors, Vance said.

Without FERPA, she said, “an institution that maybe doesn’t have best interests at heart could turn around and release information about students who had been disciplined for protesting.”

Published on February 25, 2020 at 10:46 pm

Contact Casey: casey@dailyorange.com | @caseydarnell_