Michigan case raises concerns

Transparency questioned surrounding Gibbons’ expulsion

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    ANN ARBOR — As the University of Michigan’s student body president, Michael Proppe expresses a concern regarding the reported expulsion of Brendan Gibbons, a graduate student at Michigan and a kicker on the football team.

    “The university is not answering questions about this incident or the investigation surrounding it,” Proppe said Tuesday. “Answers to some of these questions will go a long way in providing some confidence.”

    READ: Full executive order from Michael Proppe for a UM student task force to investigate the expulsion of UM's kicker.

    Experts on federal privacy laws agree with Proppe, and they disagree with Michigan’s use of the Family Educational Rights and Privacy Act in relation to Gibbons’ December expulsion for violating the school’s student sexual misconduct policy.

    “If the result of a disciplinary proceeding is that a person was found responsible for behavior that relates to a violent crime or a sex crime, that outcome is 100 percent unprotected by FERPA,” said Frank LoMonte, the executive director of the Student Press Law Center in Arlington, Va. “There’s no room for interpretation or discussion.”

    University representatives and Michigan football coach Brady Hoke have withheld comments on Gibbons’ case, the investigation that led to his expulsion and his expulsion, citing federal privacy laws. FERPA is a 1974 federal law that maintains and protects the privacy of student educational records, and it applies to educational agencies and institutions that receive federal funding through an applicable U.S. Department of Education program.

    The Michigan Daily, UM’s student newspaper, reported last week that Gibbons’ expulsion stemmed from a 2009 incident. Proppe announced late Monday night that he has established a task force to investigate Gibbons’ expulsion, the Office of Student Conflict Resolution’s investigation into the case, and the school’s 2013 implementation of its current student sexual misconduct policy.

    “As much as I can appreciate the university’s desire to keep matters private, the reality of the situation is that this isn’t private anymore,” Proppe said. “The university’s policy on privacy is hindering a broader transparency about this process.”

    David Cuillier, president of the Society of Professional Journalists and the director of the University of Arizona’s journalism school, also says Michigan is in the wrong but finds a gray area, given that this case involves a disciplinary record.

    “The problem is law enforcement records are exempt from FERPA, but if they are records not held by the campus police and instead just disciplinary records, then a lot of folks argue that they can be secret under FERPA,” Cuillier wrote in an email to The Blade. “As a result, a lot of universities hide wrongdoing through their student affairs disciplinary procedures so they can keep it all hushed up and make their campuses look safer. It’s one of the great travesties of FERPA.”

    LoMonte and Carolyn Carlson, chair of the FERPA subcommittee of SPJ’s Freedom of Information Committee, said the only way Michigan can utilize FERPA is if a state’s open records act overrides the federal law or if internal discipline is not within a federal privacy exemption. In Gibbons’ case, LoMonte explained, the particular reason for his expulsion is not clear.

    “We don’t know if the conduct found by a disciplinary board was equal to a sex offense, or if there was a plea that was bartered, or even if the outcome of the investigation was something less than a sexual assault,” LoMonte said. “It’s possible that discipline is not within the FERPA exemption.”

    Still, LoMonte said, it’s a falsehood for an institution to rely on FERPA as the basis for not discussing a case that involves student and community safety — and the fact that little clarity has been provided in regards to a 2009 incident involving Gibbons that reportedly triggered the investigation in August.

    “Michigan owes it to the public to come clean with the process, especially now that a name is known,” LoMonte said. “There’s no privacy interest to be served in continuing to be secretive in this process. They need to explain to people this: Why do you let someone stay on campus when it appears you’ve concluded that a person committed an expulsion-worthy offense?”

    Cuillier took a practical perspective.

    “It’s outrageous what the university is doing,” he said. “And if I were a parent or student, I would demand they get with the program.”

    Contact Rachel Lenzi at: rlenzi@theblade.com, 419-724-6510, or on Twitter @RLenziBlade.