DISCIPLINARY RECORDS OPEN TO THE PUBLIC

Robert E. Manley, Manley & Burke

The United States Supreme Court refused to review a decision that compels Miami University of Ohio to allow student editors of the campus paper to have full access to records of student disciplinary  proceedings. The days of confidential disciplinary proceedings by a state-supported university may now be over.

[The Ohio Supreme Court found that records of state university disciplinary proceedings are not “educational records” under the federal law ensuring the privacy of educational records.]

Ohio has a public records law mandating that all records of public agencies be available for public inspection. Most states have similar laws. The Miami Student, a campus newspaper, sought records of student disciplinary proceedings before the University Disciplinary Board (UDB). The editor indicated a desire to use the information to track student crime trends on campus. The University refused to make the records available, relying upon the Family Education Rights and Privacy Act, 20 U.S.C. §1232(g)(b). The University provided statistical information, but deleted from the records the identity, the sex, and the age of the persons who were accused as well as the date, time and location of the incidents.

The Ohio Supreme Court found that records of state university disciplinary proceedings arc not “educational records” under the federal law ensuring the privacy of educational records. They are public records under the Ohio Public Records Act (Ohio Revised Code §149.43) and must be made available to the public.

The Ohio Supreme Court’s analysis of the Family Education Rights and Privacy Act is that it “defines ‘educational records’ as ‘those records that contain information directly related to a student and that are maintained by an educational agency or institution’.”

The Ohio Supreme Court relied upon Red and Black Publishing Co. v. Board of Regents of the University System of Georgia (1993), 262 Ga. 848,427 S.E.2d 257. Both the Georgia and the Ohio courts reasoned that “the records sought, which involve infractions allegedly committed by fraternities,  were  not  education  records,  since  they did not relate to student academic performance, financial aid, or scholastic probation.”

At Miami University, the Ohio Supreme Court found the “University Disciplinary Board adjudicates cases involving infractions of student rules and regulations, such as underage drinking, but may also hear criminal matters, including physical and sexual assault offenses, which may or may not be turned over to local law enforcement agencies. Thus, the UDB proceedings are non-academic in nature. The UDB records, therefore, do not contain educationally-related information, such as grades  or other academic data, and arc unrelated to academic performance, financial aid or scholastic performance.”

The United States Supreme Court chose not to involve itself in whether or not the federal statute overrides the Ohio Public Records Laws. In light of the Ohio case and the Georgia case, state universities can no longer assume that what they put in disciplinary files will remain confidential.

Will the requirement to disclose state university disciplinary records apply to private colleges and universities? Probably not, because states generally do not have; statutes to require the disclosure of records in nongovernmental institutions. On the other hand, both private and state universities can always have their disciplinary records subpoenaed by a court in connection with a civil lawsuit or a criminal prosecution.

Will the new trend towards mandatory disclosure of disciplinary proceedings apply to fraternities and their internal disciplinary proceedings? Probably not. On the other hand, if the fraternity occupies a house or a meeting room on state property, there may be doubts. Depending upon the way in which the public records laws are phrased, for a fraternity to hold a disciplinary hearing on state university property might convert the records of that hearing into a public record. Future lawsuits will determine the answer to this question. If a fraternity gives a detailed record of disciplinary proceedings to the dean on a state campus, once it hits the dean’s office, the record becomes a public record under the Ohio and Georgia cases.