KU stands behind redaction of fraternity hazing records; legal expert says KU not applying law correctly

Kansas University has offered additional explanation about its heavy redacting of fraternity hazing documents, specifically regarding the fraternities’ membership numbers.

The Journal-World, which reported Sunday on KU’s disciplining of two fraternities, filed a Kansas Open Records Act request for documents from KU’s investigation into the fraternities, which are on probation for hazing. The records KU provided the newspaper were heavily redacted to hide all information about the nature of the hazing — which, under KU code, can include anything from creating “mental discomfort” to “recklessly” endangering someone’s physical safety.

Under the federal Family Educational Rights and Privacy Act (FERPA) KU is only allowed to release student information without the student’s consent after removing “all personally identifiable information,” university spokesman Joe Monaco said, in an email early this week.

“One of those fraternities had less than 10 total members, meaning any information about those events can be identifiable to anyone who knows a fraternity member — and many people on campus do,” Monaco said. “The other fraternity involved events that happened to all members of a particular pledge class, meaning any details of those events can be identifiable to anyone who knows a member of that class — and many people on campus do.”

KU also said releasing the records without behaviors redacted would constitute an unwarranted invasion of privacy under the Kansas Open Records Act.

After investigating reports of hazing during fall 2014, KU placed Delta Tau Delta on probation March 9, 2015, through Jan. 1, 2017 — 22 months. Delta Tau Delta, located at 1111 W. 11th St., has 75 undergraduate members, according to the fraternity’s national headquarters.

Following reports of hazing in early 2015, KU placed Phi Beta Sigma on probation May 7, 2015, through May 7, 2017 — the maximum two years allowed under KU disciplinary probation procedures. Phi Beta Sigma, an African-American greek letter fraternity that does not have a formal chapter house, currently has five members, according to the KU organization directory.

Representatives from both fraternities’ national headquarters declined to answer what hazing behaviors led to the discipline.

Fraternities themselves are private organizations not subject to open records laws.

However, KU — which formally recognizes fraternities as registered university organizations and disciplines them for violations of KU student code — is a state agency that is subject to open records laws.

Monaco said state law requires KU to be “as transparent as possible” but that FERPA is “designed to protect the privacy of students and families.”

“These two requirements are often at odds with each other, meaning the university is often stuck between ensuring reasonable transparency and complying with FERPA. Moreover, FERPA is not always clear, and the federal government has interpreted it very broadly, putting the university at risk virtually any time student information is requested,” Monaco said. “…In the case of student records governed by FERPA, we tend to err in favor of student privacy to ensure we are in compliance with federal law.”

KU is not the only university to broadly interpret FERPA when applying it to organizational discipline records.

However, some transparency advocates say that’s a misuse of the law.

“In cases that involve discipline, we frequently hear FERPA invoked whether or not that statute genuinely applies,” said Frank LoMonte, executive director of the Student Press Law Center, which advocates for open government on campuses nationwide. “FERPA is a very narrow statute. It governs only individually identifiable student education records.”

Penalties imposed on groups almost never qualify as FERPA records, by definition, as those documents aren’t part of any particular student’s education record, LoMonte said.

LoMonte said that if names or mentions of a particular fraternity office held by an individual were included in group records, it would be appropriate to redact those — but not more.

If a group is, in fact, so small that individual members would be widely known on campus, the university probably shouldn’t publicly share any information, LoMonte said. He said single digits might fall into that category but not larger groups.

“If they’re convinced that saying that a pledge was tied up and hit with paddles gives away someone’s confidential education information, then it equally gives away information to say that the fraternity was found guilty of hazing,” he said. “You cannot have this both ways — either you can’t disclose at all, or you need to disclose everything other than the identities of the students.”

The Journal-World plans to file a written appeal to KU, asking the university’s Freedom of Information officer to provide the requested fraternity hazing records without the redaction.

KU anti-hazing policy

KU’s Code of Student Rights and Responsibilities prohibits various offenses against persons, including hazing. The section defining hazing is as follows:

“Engages in hazing of another person for the purpose of initiation or admission into, affiliation with, or continuation of membership in any organization operating under the sanction of the University. Hazing includes, but is not limited to, any action, activity or situation which recklessly, negligently or intentionally endangers the mental or physical health, welfare or safety of a person, creates excessive fatigue, sleep deprivation, mental or physical discomfort, exposes a person to extreme embarrassment or ridicule, involves personal servitude, destroys or removes public or private property, or implicitly or explicitly interferes with the academic requirements or responsibilities of a student. It is presumed that hazing is a forced activity regardless of the apparent willingness of an individual to participate in the activity. Apathy or acquiescence in the presence of hazing is not neutral; both are violations of this rule.”