- Adam Glanzman/Daily
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.
Mark Goodman, a media law professor at Kent State University, said institutions can’t cite FERPA as a reason for refusing to release the final results of a disciplinary investigation when a violent or nonforcible sex offense has been alleged.
“If they’re saying that, they’re flat-out wrong,” Goodman said. “That’s all there is to it. Assuming this is a crime of violence or a nonforcible sex offense, they are simply wrong.”
Though University officials claim only Gibbons can release information about his academic record, FERPA would not prohibit the release of the final outcome of the disciplinary proceedings. Therefore, it is possible that Michigan football coach Brady Hoke could have been informed of the disciplinary process and sanctions. If Hoke was informed, FERPA would not have prevented him from disclosing the permanent separation to the media.
While FERPA prohibits certain information from being released to the public, it does not obligate their release. Requests for such information is handled through a Freedom of Information Act process, which obligates institutions to release any documents not exempted from FOIA, redacting only what is exempt.
The University has a history of narrowly interpreting Michigan’s FOIA law. In 2011, a Daily investigation found that the University charged much higher fees than other public Big Ten schools to release basic documents, such as parking ticket and payment card records. In 2012, the University refused to release to the Daily the graduate school application of James Holmes, the 24-year-old charged in the mass shooting that took place at an Aurora, Colo., movie theater in July of that year, despite the fact that several universities with similar public records laws released Holmes’ application to their institutions when asked.
The state’s FOIA law contains a provision exempting documents that would prevent the University from complying with FERPA, but experts have said FERPA does not apply to the information in question. In response to requests for the Holmes application and many other documents pertaining to individuals, the University has often cited a provision of FOIA which exempts the release of information that would constitute “a clearly unwarranted invasion of an individual's privacy.”
—Online Editor Austen Hufford contributed to this report.