Subject: Georgetown University Clery Act Complaint
Date: Sunday, March 2, 2003 8:43 PM
From: S. Daniel Carter
<sdcarter@securityoncampus.org>
To: <beth.brinly@ed.gov>
Dear Ms. Brinly-
In the interests of assisting the U.S. Department of
Education in their review of the Jeanne Clery Act complaint filed recently
against Georgetown University by student Kate Dieringer we submit this analysis
in support of her argument that her rights under the "Campus Sexual
Assault Victims' Bill of Rights" were violated, and that the rights of
other students continue to be violated.
Specifically, we agree with Ms. Dieringer that
Georgetown's policy of requiring sexual assault victims to sign a
confidentiality agreement before they will be told the final results of any
disciplinary action taken against their alleged assailants violates the Clery
Act, and serves as an unconscionable revictimization.
This reality is also not accurately reflected in their
annual security report, which at a minimum it should be. Accordingly we ask you
to require that this substantial misrepresentation be corrected immediately, or
a civil penalty be imposed on Georgetown for their failure to fully comply with
the Clery Act.
Georgetown's 2002 annual security report produced in
compliance with the Clery Act provides that in sexual assault cases the
"Office of Student Conduct discloses the finding and the sanction to the
victim and the accused," however this statement does not address the
conditions imposed upon the victim for receipt of this information. A review of
the annual report alone might lead one to believe that a victim is unconditionally
provided the final results, however as noted in their handbook this is not the
case.
The annual security report is available on-line at...
http://www.georgetown.edu/student-affairs/dps/Security_Report.htm
Georgetown's student handbook provides that the "disclosure
to a complainant or alleged victim will be made only on the condition that he
or she agrees to and signs the confidentiality agreement set forth in the
Disclosure of Adjudication Outcome Form prior to the release of the
information." This policy prohibits the complainant from redisclosing the
outcome to anyone except "his or her parents and the individual who served
as his or her advisor or student consultant during the disciplinary
process."
Georgetown's complete "Disclosure of Adjudication
Outcome Policy" policy can be accessed on-line at...
http://www.georgetown.edu/student-affairs/handbook/conduct/disclosure.html
The Clery Act, however, clearly provides that sexual
assault victims MUST be told the outcome of any such disciplinary proceeding,
and does not permit an institution to make such disclosure contingent on
anything. 20 U.S.C. ¤ 1092(f)(8)(B)(iv)(II) unequivocally provides that
"both the accuser and the accused shall be informed of the outcome of any
campus disciplinary proceeding brought alleging a sexual assault."
Additionally, 34 CFR 668.46(b)(11)(vi)(B) the regulation
implementing this
particular requirement provides that both "the
accuser and the accused must
be informed of the outcome of any institutional
disciplinary proceeding
brought alleging a sex offense." "Compliance
with this paragraph does not
constitute a violation of the Family Educational Rights
and Privacy Act (20
U.S.C. 1232g)," it further notes.
The implementing regulations recognize not only the
exception provided by 20 USC ¤ 1232(g)(b)(6)(A) which specifically permits this
disclosure to the victims of violent crimes, or non-forcible sex offenses
regardless of the outcome of a case, but also the unique statutory protections
afforded sexual assault victims by the Clery Act.
Normally information disclosed under FERPA is subject to
a non rediscosure requirement, but it is not in this case as recognized by the
Clery Act regulations which provide that the unconditional disclosure to sexual
assault victims is not in violation of FERPA. First, in those cases where an
accused student is found responsible 20 USC ¤ 1232(g)(b)(6)(B) specifically
permits public disclosure of the final results, and accordingly the records are
not subject to any redisclosure prohibition.
Second, while the public disclosure of the final results
of student disciplinary cases involving crimes of violence, or non-forcible sex
offenses continues to be precluded by FERPA when the accused student is not
found responsible, and non sexual assault crime victims who are told under 20
USC ¤ 1232(g)(b)(6)(A) remain subject to redisclosure prohibitions this is not
the case for sexual assault victims.
The requirement of 20 U.S.C. ¤ 1092(f)(8)(B)(iv)(II) that
sexual assault victims "shall be informed of the outcome" supercedes
any FERPA provision, and makes unconditional disclosure to the victim a
requirement. This unique requirement recognizes the particular needs of sexual
assault victims to be able to share their experiences with others, including
victims, friends, counselors, and advocates.
The outcome of any disciplinary action taken against
their alleged assailant is an important element of this healing, especially if
they are dissatisfied with the process. Denying them this option, as Georgetown
has, can be seriously detrimental, and was one of the things Congress sought to
prevent when adopting this unique disclosure requirement.
Even if sexual assault victims in cases where the accused
student is not found responsible were to remain subject to FERPA's redisclosure
prohibitions, the Clery Act does not permit an institution to artificially
impose a redisclosure requirement in those cases where FERPA permits public
disclosure, and accordingly there is no redisclosure prohibition.
Only a provision in federal law could possibly serve as
justification to impose any redisclosure prohibition on a sexual assault victim
who receives the final results of a disciplinary proceeding. Absent any
superceding prohibition in another federal law, the Clery Act mandates that
sexual assault victims be permitted to redisclose the final results shared with
them. An institution is not permitted to establish their own prohibition and
remain in compliance with the Clery Act.
In Ms. Dieringer's case, according to published reports
in the Georgetown Voice, the accused student was in fact found in violation of
school rules in relation to her accusation. Accordingly the FERPA statute does
not preclude public disclosure of this information, or redisclosure by anyone
who is in receipt of it. Georgetown's choice to silence her was completely at
the institution's whim, and not done in response to any federal requirement.
By forcing Ms. Dieringer to sign an agreement promising
not to redisclose the final results of the disciplinary action taken against
her assailant they violated her rights under the Jeanne Clery Act which
guarantees unconditional access to this information by sexual assault victims.
We ask that Ms. Dieringer and all future sexual assault
victims at Georgetown University be spared this revictimization and ask the
U.S. Department of Education to take all steps necessary to ensure that they
are provided with unobstructed access to the outcomes of disciplinary actions
taken against their attackers as guaranteed by the Jeanne Clery Act's
"Campus Sexual Assault Victims' Bill of Rights" provisions.
Thank you in advance for your prompt attention and
response to this issue. If you have any questions please don't hesitate to
contact me.
S. Daniel Carter
Senior Vice President
Security On Campus, Inc.
********************************
http://www.securityoncampus.org/