This has been smoldering for a few years now, fixing to conclude.
UT fights release of records
Seeks to withhold info on student violence, conduct
Bayliss Wagner
Austin American-Statesman USA TODAY NETWORK
Five years after the American-Statesman sued the University of Texas for records on students who were disciplined for violence and sexual misconduct, and two years after an appellate court ordered the records released, the school is taking its fight to withhold the information to the state Supreme Court.
Set for a hearing Oct. 1, the case may decide whether public universities in Texas can protect the names of students found responsible for such offenses through campus disciplinary proceedings – and could have broader ramifications for public information access in the state, experts say.
The Statesman requested the records from UT and UT-El Paso in 2019 as part of a USA TODAY investigation into college athletes who were able to continue playing Division I sports after being found responsible for violent, criminal or sexual misconduct.
While fewer than 40 of the 226 U.S. schools contacted by USA TODAY produced disciplinary records, the investigation revealed that at least 33 studentathletes had been able to transfer schools and walk onto the field sometimes just months after being charged with crimes or being found responsible for violating school policies on violence and sexual harassment or assault.
The newspaper asked the schools for three pieces of information as authorized for release by the federal Family Education Records and Privacy Act, or FERPA: the name of each student found responsible for a violent offense or sexual misconduct, the violation committed and any punishment imposed.
While FERPA makes most aspects of student records confidential, Congress amended the law in 1998 to allow
federally funded universities to disclose those records.
“If students do not know about violent offenders in their college community, how will they know how to protect themselves?” U.S. Rep. Bill Goodling, RPennsylvania, said during floor debate on the provision.
The Statesman did not request the names of students who were accused but not found responsible of any violation, nor did it request the names of students who were in the middle of their disciplinary proceedings. FERPA does not allow federally funded schools to release such information.
In response to the Texas Public Information Act requests, UT-El Paso released the records. UT-Austin, home of the third-highest-ranked football program in the country, denied the request.
The Statesman and its parent company, then Gatehouse (which later merged with Gannett), sued UT for the records in 2019.
Both an Austin state District Court and the 8th Court of Appeals in El Paso ruled in the Statesman’s favor. Justice Gina Palafox, a Democrat, wrote that the information contained in the disciplinary records “is directly related to the safety of students on campus” and “is of significant public interest” in the appellate court’s majority opinion.
Another Democratic justice joined the majority opinion, while Justice Jeff Alley, a Republican, dissented.
In asking the Texas Supreme Court to overturn the appellate court’s ruling, UT – which is being defended by the Texas attorney general’s office – argues that student privacy concerns outweigh the public’s right to access state records.
“The release of that information threatens to expose students to public scrutiny and humiliation,” Assistant Solicitor General Kyle Highful wrote in UT’s merits brief. “That includes students who were accused of sexual violations and who were not afforded the protections of a criminal trial.”
UT also argues that the Texas Public Information Act allows it to choose whether to hand over the records, rather than mandating or prohibiting their disclosure, citing a clause in the law that says the act “does not prohibit” schools from sharing sexual assault records.
The Statesman argues that because UT failed to request an opinion from the attorney general, the school should be required to disclose the information under Texas Public Information Act provisions.
The newspaper’s attorneys also dispute UT’s claim that any information is optional to disclose, citing the first provision of the Texas Public Information Act, which states, “The people, in delegating authority, do not give their public servants the right to decide what is good for the people to know and what is not good for them to know.”
“The laws at play are to be read liberally in favor of access, and any exception has to be narrowly construed so it doesn’t defeat the public’s right to know,” attorney John Bussian, who represents the Statesman, said in a phone interview.
Neither UT, the attorney general’s office nor Highful answered the Statesman’s requests for comment.
Procedural issue at center of case
Both sides agree that UT is legally authorized to release the records if it chooses to, as did UTEP, its fellow UT System school.
The Statesman sought those records through the Texas Public Information Act. The act entitles the public access to all information produced or maintained by Texas officials and government bodies, including state public universities, “except otherwise expressly provided by law.”
When it is unclear whether the law exempts disclosure of requested information, government entities must ask the attorney general’s office to settle the dispute. If they fail to do so, the information “must be released unless there is a compelling reason to withhold the information,” under the Texas Public Information Act.
If the Texas Supreme Court finds that UT should have sought the attorney general’s help, the school will be on the hook to prove it had a “compelling reason” to hide the disciplinary records. If it can’t prove that, it’ll be forced to release them.
UT argues, and appellate Justice Jeff Alley wrote in his dissent, that it did not need to seek an attorney general opinion because that office is not allowed to review – and schools are not allowed to release – records protected by FERPA, as the attorney general opined in a 1995 open records decision.
In response, the Statesman noted that Texas educational institutions must seek an attorney general opinion when FERPA does not protect the requested information and a previous ruling has not established whether that information must be disclosed, as per the same 1995 decision.
A ruling could send a message about the consequences – or lack thereof – for government entities that hide records without clear permission to do so, said Amy Sanders, a First Amendment and media law professor at UT.
“If UT loses, it could be a big wake-up call to government agencies that they need to follow the rules,” Sanders said. “And that’s particularly important in the public records space, because we don’t see a lot of enforcement when agencies fail to follow the rules.”
Is privacy of student offenders a compelling reason to keep records concealed?
Whether the names of students who are found to have committed a sexual assault should be released has long been a topic of national debate. Particularly during the height of the #MeToo movement, calls for greater transparency on the part of universities have often been met with contentions or revelations that alleged offenders were wrongfully accused or not given due process rights before being publicly outed.
That issue is at play in this case, which could dictate whether state public universities must release information about students who were found to have committed violent offenses, including sexual assault, and nonforcible sexual offenses like harassment.
UT argues that student privacy concerns are a “compelling reason” for the records not to be released. As UT notes in its briefs to the Texas Supreme Court, school disciplinary proceedings generally have lower evidentiary thresholds compared with criminal trials, requiring proof through a “preponderance of evidence” rather than evidence establishing guilt “beyond a reasonable doubt.”
And while victims’ names would be concealed, UT argues they are “at risk of being identified based on the accused’s identity and the nature of the violation committed.”
“Providing the requested information could expose embarrassing and intimate details of students who have already endured traumatic disciplinary proceedings,” Highful wrote in UT’s merits brief.
The Statesman, for its part, contends that UT failed to present this argument to the trial court and therefore failed to meet its burden of proof.
UT provided USA TODAY with aggregate, de-identified data on sexual assault adjudications for a separate story. Between 2014 and 2020, the data showed, 43 students were suspended and 13 were expelled for sexual misconduct at a school whose population tops 55,000.
Sanders said that knowing names, findings and sanctions from each case could provide better oversight of the adjudication process. “I think a lot of times, people think, ‘Oh, these are young people. If their names are exposed, it might ruin their future,’” Sanders said. “But not having oversight of this process also has the potential to cause serious harm to students who have to go through this adjudicative process.”
Sanders said the university’s privacy argument presents “a bit of a double standard” because UT has published the names of employees who violated sexual misconduct policies as well as details of the incidents and imposed sanctions. Many of the 17 incidents detailed in a 2020 document the university released involved students.
“If it’s important that students know about faculty and staff members who have been found responsible in sexual misconduct cases, that seems to support the Statesman’s argument that the public has a right to know” about student offenders, Sanders told the Statesman in a phone interview.
She also noted that research has found repeat offenders are responsible for 87% of campus sexual assaults, according to a 2019 study published in Violence Against Women journal.
“If students do not know about violent offenders in their college community, how will they know how to protect themselves?”
U.S. Rep. Bill Goodling
Republican from Pennsylvania
UT SUIT
from page A1 to page A5
Check out this story from Austin American Statesman: UT fights release of athletes' violent, sexual misconduct records
Five years after the Statesman sued UT-Austin for student violence and sexual misconduct records, UT is taking the fight to the Texas Supreme Court.
UT fights release of records
Seeks to withhold info on student violence, conduct
Bayliss Wagner
Austin American-Statesman USA TODAY NETWORK
Five years after the American-Statesman sued the University of Texas for records on students who were disciplined for violence and sexual misconduct, and two years after an appellate court ordered the records released, the school is taking its fight to withhold the information to the state Supreme Court.
Set for a hearing Oct. 1, the case may decide whether public universities in Texas can protect the names of students found responsible for such offenses through campus disciplinary proceedings – and could have broader ramifications for public information access in the state, experts say.
The Statesman requested the records from UT and UT-El Paso in 2019 as part of a USA TODAY investigation into college athletes who were able to continue playing Division I sports after being found responsible for violent, criminal or sexual misconduct.
While fewer than 40 of the 226 U.S. schools contacted by USA TODAY produced disciplinary records, the investigation revealed that at least 33 studentathletes had been able to transfer schools and walk onto the field sometimes just months after being charged with crimes or being found responsible for violating school policies on violence and sexual harassment or assault.
The newspaper asked the schools for three pieces of information as authorized for release by the federal Family Education Records and Privacy Act, or FERPA: the name of each student found responsible for a violent offense or sexual misconduct, the violation committed and any punishment imposed.
While FERPA makes most aspects of student records confidential, Congress amended the law in 1998 to allow
federally funded universities to disclose those records.
“If students do not know about violent offenders in their college community, how will they know how to protect themselves?” U.S. Rep. Bill Goodling, RPennsylvania, said during floor debate on the provision.
The Statesman did not request the names of students who were accused but not found responsible of any violation, nor did it request the names of students who were in the middle of their disciplinary proceedings. FERPA does not allow federally funded schools to release such information.
In response to the Texas Public Information Act requests, UT-El Paso released the records. UT-Austin, home of the third-highest-ranked football program in the country, denied the request.
The Statesman and its parent company, then Gatehouse (which later merged with Gannett), sued UT for the records in 2019.
Both an Austin state District Court and the 8th Court of Appeals in El Paso ruled in the Statesman’s favor. Justice Gina Palafox, a Democrat, wrote that the information contained in the disciplinary records “is directly related to the safety of students on campus” and “is of significant public interest” in the appellate court’s majority opinion.
Another Democratic justice joined the majority opinion, while Justice Jeff Alley, a Republican, dissented.
In asking the Texas Supreme Court to overturn the appellate court’s ruling, UT – which is being defended by the Texas attorney general’s office – argues that student privacy concerns outweigh the public’s right to access state records.
“The release of that information threatens to expose students to public scrutiny and humiliation,” Assistant Solicitor General Kyle Highful wrote in UT’s merits brief. “That includes students who were accused of sexual violations and who were not afforded the protections of a criminal trial.”
UT also argues that the Texas Public Information Act allows it to choose whether to hand over the records, rather than mandating or prohibiting their disclosure, citing a clause in the law that says the act “does not prohibit” schools from sharing sexual assault records.
The Statesman argues that because UT failed to request an opinion from the attorney general, the school should be required to disclose the information under Texas Public Information Act provisions.
The newspaper’s attorneys also dispute UT’s claim that any information is optional to disclose, citing the first provision of the Texas Public Information Act, which states, “The people, in delegating authority, do not give their public servants the right to decide what is good for the people to know and what is not good for them to know.”
“The laws at play are to be read liberally in favor of access, and any exception has to be narrowly construed so it doesn’t defeat the public’s right to know,” attorney John Bussian, who represents the Statesman, said in a phone interview.
Neither UT, the attorney general’s office nor Highful answered the Statesman’s requests for comment.
Procedural issue at center of case
Both sides agree that UT is legally authorized to release the records if it chooses to, as did UTEP, its fellow UT System school.
The Statesman sought those records through the Texas Public Information Act. The act entitles the public access to all information produced or maintained by Texas officials and government bodies, including state public universities, “except otherwise expressly provided by law.”
When it is unclear whether the law exempts disclosure of requested information, government entities must ask the attorney general’s office to settle the dispute. If they fail to do so, the information “must be released unless there is a compelling reason to withhold the information,” under the Texas Public Information Act.
If the Texas Supreme Court finds that UT should have sought the attorney general’s help, the school will be on the hook to prove it had a “compelling reason” to hide the disciplinary records. If it can’t prove that, it’ll be forced to release them.
UT argues, and appellate Justice Jeff Alley wrote in his dissent, that it did not need to seek an attorney general opinion because that office is not allowed to review – and schools are not allowed to release – records protected by FERPA, as the attorney general opined in a 1995 open records decision.
In response, the Statesman noted that Texas educational institutions must seek an attorney general opinion when FERPA does not protect the requested information and a previous ruling has not established whether that information must be disclosed, as per the same 1995 decision.
A ruling could send a message about the consequences – or lack thereof – for government entities that hide records without clear permission to do so, said Amy Sanders, a First Amendment and media law professor at UT.
“If UT loses, it could be a big wake-up call to government agencies that they need to follow the rules,” Sanders said. “And that’s particularly important in the public records space, because we don’t see a lot of enforcement when agencies fail to follow the rules.”
Is privacy of student offenders a compelling reason to keep records concealed?
Whether the names of students who are found to have committed a sexual assault should be released has long been a topic of national debate. Particularly during the height of the #MeToo movement, calls for greater transparency on the part of universities have often been met with contentions or revelations that alleged offenders were wrongfully accused or not given due process rights before being publicly outed.
That issue is at play in this case, which could dictate whether state public universities must release information about students who were found to have committed violent offenses, including sexual assault, and nonforcible sexual offenses like harassment.
UT argues that student privacy concerns are a “compelling reason” for the records not to be released. As UT notes in its briefs to the Texas Supreme Court, school disciplinary proceedings generally have lower evidentiary thresholds compared with criminal trials, requiring proof through a “preponderance of evidence” rather than evidence establishing guilt “beyond a reasonable doubt.”
And while victims’ names would be concealed, UT argues they are “at risk of being identified based on the accused’s identity and the nature of the violation committed.”
“Providing the requested information could expose embarrassing and intimate details of students who have already endured traumatic disciplinary proceedings,” Highful wrote in UT’s merits brief.
The Statesman, for its part, contends that UT failed to present this argument to the trial court and therefore failed to meet its burden of proof.
UT provided USA TODAY with aggregate, de-identified data on sexual assault adjudications for a separate story. Between 2014 and 2020, the data showed, 43 students were suspended and 13 were expelled for sexual misconduct at a school whose population tops 55,000.
Sanders said that knowing names, findings and sanctions from each case could provide better oversight of the adjudication process. “I think a lot of times, people think, ‘Oh, these are young people. If their names are exposed, it might ruin their future,’” Sanders said. “But not having oversight of this process also has the potential to cause serious harm to students who have to go through this adjudicative process.”
Sanders said the university’s privacy argument presents “a bit of a double standard” because UT has published the names of employees who violated sexual misconduct policies as well as details of the incidents and imposed sanctions. Many of the 17 incidents detailed in a 2020 document the university released involved students.
“If it’s important that students know about faculty and staff members who have been found responsible in sexual misconduct cases, that seems to support the Statesman’s argument that the public has a right to know” about student offenders, Sanders told the Statesman in a phone interview.
She also noted that research has found repeat offenders are responsible for 87% of campus sexual assaults, according to a 2019 study published in Violence Against Women journal.
“If students do not know about violent offenders in their college community, how will they know how to protect themselves?”
U.S. Rep. Bill Goodling
Republican from Pennsylvania
UT SUIT
from page A1 to page A5
Check out this story from Austin American Statesman: UT fights release of athletes' violent, sexual misconduct records
Five years after the Statesman sued UT-Austin for student violence and sexual misconduct records, UT is taking the fight to the Texas Supreme Court.
