The Assault on Campus Assault: The Conflicts Between Local Law Enforcement, FERPA, and Title IX

Abstract

Controversies on college campuses nationwide have led to widespread calls to reform the investigative process of campus sexual assault cases. A total abandonment of the Title IX system would leave victims with few options for justice, but investigations by both universities and local law enforcement can lead to conflicts that are often not addressed in policy discussions about Title IX. This Note explores the Title IX and criminal systems for handling campus sexual assault. It then examines the conflicts created by federal law under the Family Educational Rights and Privacy Act (“FERPA”) and Title IX for the effective policing of campus sexual assaults. Both the Title IX system and traditional criminal proceedings have pros and cons. Local law enforcement access to campus proceedings may help bring effective criminal justice by increasing the amount of evidence in sexual assault trials. Yet FERPA and Title IX can stymie local law enforcement efforts by blocking access to student records without subpoena. This exacerbates problems relating to the high evidentiary standards in criminal cases. Even if law enforcement could access student records, the accused’s due process rights may be at even greater risk, undermining the integrity of the Title IX system. Ultimately, this Note argues that Congress must revise FERPA to require release of limited information where there is a finding of guilt, to strike a balance between the interests of the accused, the victim, and the public.