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Citing FERPA and policy, University declines to release details in Gibbons case

Adam Glanzman/Daily
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By Adam Rubenfire, Daily Staff Reporter
and Matt Slovin, Daily Sports Writer
Published January 29, 2014

After The Michigan Daily reported Tuesday that former Michigan kicker Brendan Gibbons was permanently separated from the University in December, University officials declined to release any information pertaining to his academic status, citing the Family Educational Rights and Privacy Act and University policy.

University spokesman Rick Fitzgerald reaffirmed that stance Wednesday and cited University precedent of not discussing disciplinary records.

“It’s a combination of being sensitive to FERPA, the law, as well as the University policies that are more restrictive than FERPA,” Fitzgerald said.

Fitzgerald said administrators deliberated Wednesday on what course of action to pursue, taking into account “the letter of the law, the spirit of the law and long-standing University policies.”

“After consulting the law, consulting the attorneys in the Office of General Counsel, giving careful consideration to our long-standing policy of not discussing student disciplinary matters publicly, this is the only information we are releasing,” Fitzgerald said. “We’re not releasing any additional details.”

Without directly referring to Gibbons, a written statement e-mailed to the Daily from Fitzgerald stated that allegations of sexual misconduct made in 2009 were “handled in accordance with the University policy in effect at the time.”

Though FERPA does not prohibit the University from relying on its institutional policies as reason to withhold the results of a disciplinary proceeding, two experts specializing in media and records law said in interviews with the Daily on Wednesday that the outcome of the disciplinary process is not protected by FERPA.

Frank LoMonte, executive director of the Student Press Law Center, said FERPA does not prohibit the disclosure of the outcome of Gibbons’ disciplinary case because University investigators concluded that he was responsible for behavior that equates to a sexual offense.

“They’re just wrong that FERPA applies to a finding that a person committed a sexual assault,” LoMonte said. “So that’s not a valid reason to refuse comment on a disciplinary outcome.”

The text of FERPA notes that the law shouldn’t “be construed to prohibit an institution of postsecondary education from disclosing the final results of any disciplinary proceeding conducted by such institution against a student who is an alleged perpetrator of any crime of violence … or a nonforcible sex offense, if the institution determines as a result of that disciplinary proceeding that the student committed a violation of the institution’s rules or policies with respect to such crime or offense.”

The provision, which was added by Congress in 1998, amended FERPA to allow the release of the final decision in cases related to offenses that would be treated as a violent or sexual crime in a court of law.

The lone exception that would allow the University to invoke FERPA, LoMonte said, would be if Gibbons had been found responsible solely for sexual harassment, as opposed to a more violent, physical crime like sexual assault or battery.

Documents reviewed by the Daily do not disclose the specific conduct for which Gibbons has been found responsible, stating only that he was found to have “engaged in unwanted or unwelcome conduct of a sexual nature, committed without valid consent, and that conduct was so severe as to create a hostile, offensive or abusive environment.”

LoMonte acknowledged that investigators could have found Gibbons responsible for sexual harassment, but said the severe and rare punishment of permanent separation from the University doesn’t match the offense based on similar occurrences at other schools.

“I suppose it’s conceivable, but I think that’s highly doubtful because of the penalty that was assessed,” LoMonte said. “You just don’t see people getting removed from college for sexual harassment.”

Fitzgerald said the refusal to release the results of the disciplinary proceedings should not be used to infer the nature of Gibbons’ alleged conduct.

At the University, permanent separation is a very rare result of OSCR proceedings. In the latest OSCR data available from the 2011-2012 academic year, there were zero permanent separations.


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