New information regarding the intricacies of the Family Educational Rights and Privacy Act has revealed that the University’s recent behavior in response to Brendan Gibbons’ expulsion is deeply suspicious. In the last two days, the University has neglected any opportunity to speak out and address the public criticisms directed toward it. Instead, administrators have invoked a number of furtive internal policies and vaguely interpreted laws to explain its silence.
At best, this case indicates an unbelievable lack of communication between University units. On Nov. 20, 2013, the University’s Office of Student Conflict Resolution signed a document stating that the Office of Institutional Equity determined there was a preponderance of evidence finding former Michigan kicker Brendan Gibbons responsible for an incident of alleged sexual assault in November of 2009. This meant that the University had already decided that Gibbons was — in the eyes of the school — responsible for a sexual misconduct that was deemed “so severe as to create a hostile, offensive or abusive environment,” which led to his eventual expulsion. Yet three days later, on Nov. 23, Gibbons was allowed to play in Michigan’s football game against Iowa. He kicked three extra points for the team.
Unless it is school procedure to allow a student-athlete in violation of the Student Sexual Misconduct Policy to participate in University-sanctioned athletic events, there was a complete and utter breakdown in communication. University officials — in OIE, OSCR, the Athletic Department or all three — knowingly allowed a perpetrator of sexual misconduct to represent the school in a football game that undoubtedly generated profit for the University. This is unacceptable on any level.
More specifically, Michigan coach Brady Hoke’s behavior has raised eyebrows in the public conversation. After OIE found Gibbons to be responsible for an act of sexual misconduct, OSCR sent a letter to Gibbons informing him of his permanent separation from the University. The letter was received and signed by Gibbons on Dec. 19. By signing the document, Gibbons waived his right to appeal the sanction. At this point, Gibbons’ responsibility for the act of sexual misconduct and his expulsion were finalized within University policy and the Athletic Department should have been told. Last Thursday the Daily reported that a copy of the expulsion letter to Gibbons was discovered to have been faxed from the Athletic Department, so it appears that the Athletic Department was aware. It is possible that the Athletic Department did not inform Hoke, but it seems illogical for the head coach of the student involved to be uninformed of the situation. Four days later, on Dec. 23, Hoke announced that Gibbons would not play in the Buffalo Wild Wings Bowl due to a “family matter.” The University may have instructed Hoke to act the way he did in order to adhere to its ill-reasoned policy and weak interpretation of FERPA, but someone is still to blame for obfuscating the truth.
Doubt in the University’s innocence is sinking in as the administration continues to withhold answers. Currently, the University’s official stance is to cite school policy and FERPA as reasoning for its decision to decline comment. However, in an interview with the Daily, Frank LoMonte, executive director of the Student Press Law Center, stated that since Gibbons was determined by University investigators to be responsible in an allegation of sexual assault, FERPA does not apply: “They’re just wrong that FERPA applies to a finding that a person committed sexual assault.” If Gibbons’ violation constitutes a sexual assault rather than sexual harassment, the University, legally, cannot use FERPA as an excuse to keep silent.
Given the severity of the punishment, LoMonte believes that it is “highly doubtful” that Gibbons’ actions can be defined as sexual harassment. In a previous statement, University spokesman Rick Fitzgerald said the administration was refusing to comment in order to comply with internal policies “that are more restrictive than FERPA.” Since FERPA does not protect the school in cases of alleged sexual assault, Fitzgerald is implying that the school has a policy in place that allows the University to sit quietly while its students, alumni and faculty demand answers. If the University simply refuses to answer questions, it should say so. Attempting to broadly — and potentially inaccurately — interpret laws or school policies as an excuse for remaining mute is an act of cowardice.
Clarification Appended: The editorial has been updated to reflect Athletics spokesman Dave Ablauf’s retraction of his previous statements.