Incentives Matter, College Rape Adjudication Edition

A fascinating tale from Deadspin regarding a case of alleged rape at the hands of a trio of basketball players at the University of Oregon. (The woman went to police almost immediately, which establishes credibility there; the local district attorney declined to file charges, though the players were expelled and transferred to a different school.) What makes this case especially interesting is how this shows the imbalance between university and student, the incentives acting on the university (i.e. keep the whole thing quiet), and the astounding legal tools that the university can bring to bear upon the accuser — including access to her complete medical records, thanks to a little-known and remarkably broad law known as FERPA. Quoting attorney Katie Rose Guest Pryal,

Now, you may know that Ferpa applies to most colleges and universities. What you might not know is that, as the FAQ states, Ferpa therefore applies to "the records on students at the campus health clinics of such institutions. These records will be either education records or treatment records under Ferpa, both of which are excluded from coverage under the Hipaa Privacy Rule." In plain English, college medical records simply do not count as real medical records, at least for privacy purposes.

Although Ferpa provides a slightly different definition for "treatment records" than for "education records," the difference is, shall we say, academic, because the same disclosure rules apply: "[A] school may disclose an eligible student's treatment records for purposes other than the student's treatment provided that the records are disclosed under one of [Ferpa's] exceptions to written consent." And one of those exceptions to disclosure with consent? When the student sues the institution.

 Deadspin continues:

FERPA is the same law that schools routinely use to block public record requests. So now, not only can schools use it keep its scandals in the dark, they also can use it to fight off lawsuits in court related to those scandals. For American universities, FERPA really is the gift that keeps on giving.

Really astonishing.