COLUMN: Opening the doors a crack

From Marisa Katz's, "Ineluctable Modality of the Visible," Fall '98 From Marisa Katz's, "Ineluctable Modality of the Visible," Fall '98 OJ Simpson and the advent of Court TV changed the face of America's legal system two years ago. Currently, all student educational records must be kept confidential or universities could lose federal funding under the Family Educational Rights and Privacy Act of 1974, better known as the Buckley Amendment. State by state, interpretations vary as to whether judicial records should be considered among "education records." But a bill that would put an end to all closed-door procedures and make hearings and judicial investigation records open to the public is scheduled to come before the U.S. House of Representatives sometime this spring. Advocates of H.R. 715 -- the so-called Accuracy in Campus Crime Reporting Act -- claim that it would force campuses to come clean. Ben Clery, who founded the nonprofit Security on Campus, Inc., after his sister was raped and murdered by another student in her Lehigh University dorm, says the bill would prevent the system from being abused by administrators who "would love nothing better than for the rape victim, the burglary victim, the aggravated assault victim to shake hands with their assailants and to part amicably" (The Daily Pennsylvanian, 10/29/97). As Penn's infamous "water buffalo" saga proved, when a school's internal judicial system is put under public scrutiny, its failings and abuses may become evident. Eden Jacobowitz was a College freshman in 1993 when he was accused of violating provisions in the University speech code that prohibited racial speech. The case led directly to an overhaul of Penn's judicial charter. But while the importance of monitoring a school's judicial system is apparent, it is crucial to prevent the release if identifiable information, such as the names of alleged victims and perpetrators. If such information is revealed, fewer students are likely to come forward to incriminate their peers. This outcome is in evidence at the University of Georgia. In 1993, Georgia's Supreme Court ruled that the Buckley Amendment applies only to academic records and not to campus disciplinary records. Since then the school has been experimenting with open judiciary hearings. Peter Brown, director of the school's Office of Judicial Programs, said "it's had a chilling effect on witnesses wanting to come forward to testify and in major cases, more time and energy is spent trying to deal with the media atmosphere that almost becomes circus-like. I've had students come to me and say, 'I'm not going through this if everybody in the world is going to know about this'" (DP, 2/29/97). At Penn, in order to maintain assurance of federal funding, the process remains closed. The OSC does not release the names of student responsible for violating the University's codes, and it does not acknowledge that specific investigations are underway. Occasional reports are submitted for publication in Almanac, but these updates are purposefully vague. For instance, under the heading "sexual assault," there may be a list of disciplinary action ranging from warning to letter of apology to suspension. The system is not analogous to a criminal system and it is not meant to replace other proceedings. The OSC often handles cases considered too minor to be picked up by the criminal justice system, according to OSC Director Michele Goldfarb. And larger cases frequently go through both the University's judicial and the criminal justice systems. Since 1995, at least three students have been expelled for "assaultive or dangerous behavior," and those three cases also went through the criminal justice system, Goldfarb said. But even if there is nothing to hide, some sort of check mechanism should be worked into the system. University Police records provide information pertaining to the date, time and location of an incident, along with a brief description. Thus, it would not seem to infringe on student rights for the OSC to release similar information. Furthermore, providing status reports on each case would allow the University community to be aware of what is happening around it as well as to know about potentially dangerous people and places. But throughout the process, a level of privacy must be maintained so that victims and witnesses are not discouraged from coming forward. Penn has been lobbying Congress on this issue for some time. Last fall, Goldfarb and Vice President for Government, Community and Public Affairs Carol Scheman went to Washington last fall to talk to Congressional staffers about possible repercussions of the law. The University has a chance to seriously affect how this legislation goes through. We must come together to push for a balance between privacy and public disclosure.