DOE Seals Campus Crime Records   

The government says arrest files are shielded by "educational" privacy. The student press sues.

Crime on campus is as big a news item for the college press as crime in the streets is for metropolitan dailies. But students face a bigger obstacle in their coverage than the dailies do: the federal government.

The Student Press Law Center, a Washington, D.C.-based legal assistance group for college and high school journalists, is attacking that obstacle in a significant constitutional test case in federal court, and so far it is winning. The lawsuit contends that the Department of Education has threatened to cut off federal financial aid to pressure colleges to suppress information in campus police files, including student arrest records.

"Issues of campus crime and the personal safety of students are front-page news at schools across the country," the center told the U.S. District Court in Washington, D.C. "The press cannot adequately cover these issues if universities are forbidden, upon pain of losing federal funds, from releasing law enforcement records that identify students."

Reacting to the lawsuit, U.S. District Judge Stanley S. Harris temporarily banned any withdrawal – or any threat to do so – of federal funds for colleges releasing the identities of students arrested by campus police. He found that the college press is likely to win its constitutional challenge when the case goes to trial sometime this year.

The fight began last year after the center conducted a survey of college newspapers to find out which had access to campus police records. The center had been getting scores of complaints from the college press on a "hotline" it established for student journalists who had been rebuffed in efforts to obtain student arrest records and campus "incident reports." The survey showed that all 24 of the schools contacted routinely released campus police files with the names of students included.

Soon after the survey results were released, the Department of Education sent out letters to 14 colleges and universities, suggesting that it may violate students' privacy rights to hand out crime reports including their names. In response, the center says, at least five schools have stopped naming students in those reports.

In its letters, the Department of Education cites a federal law, the Family Educational Rights and Privacy Act, which is also known as "the Buckley Amendment" for its sponsor, former New York Sen. James Buckley. Generally, the law bars public disclosure of "education records" that identify a particular student – unless the student consents to the release. The department interprets that to mean campus police records, with few exceptions.

The Department of Education letters pointedly warned college authorities that it would be improper for campus police to disclose crime reports to anyone – "including the press" – other than local, state or federal law enforcement agencies.

The Student Press Law Center tested the effect of those warnings by contacting, among others, the University of Maryland and asking for student crime reports. University counsel Julie D. Goodwin responded, "The Family Educational Rights and Privacy Act requires the deletion of any information which would permit the identification of a particular university student. Therefore, any personally identifiable student information has been deleted from the enclosed record."

In such situations, it makes no difference that student crime reports are or might be available under a state "open records" law. To financially strapped schools, the threat of losing federal money is apparently the weightier proposition.

What gets lost in this particular act of censorship is the importance of campus crime news to college communities.

On many campuses, after repeated incidents of rape, other assaults and murder, there is acute interest in how well campus police are doing their job, what security exists to protect students and how the college administration deals with crime. And there is strong interest in getting the complete story of campus crime to thwart rumor, gossip and innuendo. The identity of the students involved is a critical part of most stories.

The Student Press Law Center's lawsuit notes that arrest records are routinely available by law in 43 states, and by official policy in five others.

"The states' near universal policy of making arrest records public defeats any argument that students have a compelling or substantial privacy interest in their arrest records," the lawsuit argues.

That plea, of course, is critical to the college press's desire for access to student crime information. The U.S. Supreme Court has made clear that the First Amendment will not force into the open any government file or record that customarily is not publicly available.

The college journalists' lawsuit potentially has a legal side effect that could be as valuable as access to crime reports: It could help legitimize the longstanding claim by students that their First Amendment rights are just as important as the rights enjoyed by professional journalists. l