Filed Under: Evidence
The Title IX regulations make the release of a respondent’s identity confidential unless the FERPA exceptions apply. FERPA permits but does not require the nonconsensual disclosure of records by postsecondary educational institutions in connection with disciplinary proceedings concerning crimes of violence or non-forcible sex offenses. Crimes of violence and non-forcible sex offenses do not include all forms of sexual harassment as defined in 34 C.F.R § 106.30(a). Does that mean that recipients cannot reveal the identity of a respondent found responsible for sexual harassment, including in response to a reference check, because it would be retaliatory to release this confidential information, assuming there is no state law requiring this information to be revealed?
In the Preamble to the regulations at 30426-27 (emphasis added), the Department addresses the intersection of FERPA and the regulations’ requirement in 34 C.F.R. § 106.45(b)(5)(vi). The Title IX regulations, at 34 C.F.R. § 106.71(a), state the general rule that a recipient must keep confidential the identity of any person who has reported sexual harassment, or who has been reported to be a perpetrator of sexual harassment. The purpose of this provision is to prevent the school from retaliating against anyone. This duty of confidentiality has three exceptions in 34 C.F.R. § 106.71(a): if disclosure is permitted under FERPA; if disclosure is required by law; or if disclosure is necessary to carry out the purposes of Title IX and its regulations, including to conduct a grievance process. A recipient’s disclosure of the identity of a respondent cannot be made with a retaliatory purpose without violating 34 C.F.R. § 106.71. If the disclosure is made by a recipient without falling into one of the three exceptions listed in 34 C.F.R. § 106.71, OCR may view the disclosure as potentially retaliatory, and examine the facts and circumstances to determine whether the disclosure either (i) satisfied one of the three exceptions (for example, the disclosure was necessary to carry out the purposes of the Title IX regulations), or (ii) was made for a non-retaliatory purpose.