Sexual Assault on College Campuses and Title IX: Part 2

Part one of this series discussed how the University's of Oregon's decision to recruit an athlete with a history of committing sexual assault - and that athlete's later assault of a UO student - may have violated Title IX regulations. The case came to light after the survivor filed a lawsuit over the university's actions, and what happened next is, in many ways, even more disturbing. After the assault, the survivor received therapy from the student health center. Privacy issues surfaced when the university accessed her health records and sent them to their attorney, without her permission, to build their case in a countersuit against the survivor. The university believes that it acted in accordance with a law called the Family Education Rights and Privacy Act (FERPA), arguing that since the survivor went to the school's health clinic, her health records belong to the school and the school had a right to access and use these records according to their own judgment and without consulting the survivor. They also state that the emotional distress and mental health impacts the student reported are considered medical claims, so the school was entitled to her medical records to fight against this claim (after press related to their actions, they dropped their countersuit against the student but are still countersuing her attorneys for their ‘false allegations’).

So, what is FERPA? FERPA is a federal law that was enacted in 1974 to protect the privacy of student education records and records of medical treatment on campus. All educational institutions that receive federal funding must comply with FERPA. Most people think the confidentiality of their health records is protected by HIPAA (The Health Insurance Portability and Accountability Act), but according to the US Department of Health and Human Services, in this instance, no. They explain that, “FERPA applies to most public and private post-secondary institutions and, thus, to the records on students at the campus health clinics of such institutions.  These records… are excluded from coverage under the HIPAA Privacy Rule, even if the school is a HIPAA covered entity.”

When the University of Oregon accessed the student’s records, she stated that she did not believe they should have this access and her therapist (a UO employee) agreed. However, the US Department of Education clarified that, "Under FERPA, if the institution discloses treatment records to anyone other than the treatment provider or another professional of the student’s choice, the records become education records…Thus, FERPA would permit the treatment records to be disclosed in litigation between the student and the institution if the records are relevant for the institution to defend itself."

As a current student, I find this disturbing. I have personally used the student health center for both medical attention and therapy, and have never once been told of circumstances where the school could use my records without my consent. Many students do not have health insurance or access to off campus doctors, so they turn to their campus health center. Each student receiving student services should be aware of this possibility before agreeing to receive services. I feel as if this is a major flaw in the patient confidentiality system that needs to be addressed, and I don’t agree that universities should have any automatic rights to a student’s health record just because the student sought services on campus.

The US Department of Justice states they are testing “promising practices” at eight schools in the areas of prevention, sexual assault policy, reporting, investigation, adjudication, and victim support services. They state “protocols to ensure confidentiality for the victim and the accused during the investigation are essential.” Although I agree with this, after learning about the University of Oregon case, I also feel something needs to be additionally legislated to ensure in writing that the school does not have legal automatic rights to these protocols. Confidentiality needs to mean 100% confidential. If not, the survivor needs to be aware up front of the possibilities, and should be referred to off-campus organizations like Sexual Trauma Services of the Midlands, who provide free and confidential services and would not be subject to the FERPA exceptions. Maybe this way, our survivors—not just offenders—will be given an “opportunity” at getting back on their feet.

Michelle Eller

Michelle Eller is a Speakers Bureau volunteer and intern with our Sumter office. She is a psychology major at Francis Marion University and a pharmacy technician at McLeod Regional Medical Facility in Florence. Her blog on sexual assault, college athletics, and Title IX is the first in a short series that will accompany the release of The Hunting Ground at The Nickelodeon on April 28th at 7pm.