Requiring a Red Flag

Last month, New York became the second state to require colleges to note on a transcript if a student was suspended or dismissed for sexual assault.

Though the Family Educational Rights and Privacy Act is sometimes erroneously cited by colleges as preventing them from sharing such details on a college transcript, no laws prevent colleges from doing so. Few colleges are required to, however.

That’s starting to change, with growing state and federal interest in the requirement leading to laws like those recently -- and easily -- passed in New York and Virginia. In other states, the requirement has met resistance, fueled by concerns that such notations would turn academic transcripts into an internal sex offender registry for colleges.

"I think people are beginning to understand the magnitude of these problems," said Paul Trible, president of Christopher Newport University in Virginia, which has long noted on transcripts when a student has been dismissed for sexual assault. "There are individuals who transfer, and schools who take them in have no knowledge that he or she transferred because there were serious problems. In that situation, other students are being placed at risk."

The New York law echoes the one enacted a month earlier in Virginia: if a college student is suspended or expelled after being found responsible for sexual assault, both public and private colleges will now be required to note that he or she was “expelled after a finding of responsibility for a code of conduct violation.” If the student leaves the institution while a hearing is still pending, that too will be noted on the transcript. California is closing in on its own version of the bill.

An attempt to pass similar legislation in Maryland recently failed in committee. The bill lacked the support of the state's Senate Education, Health & Environmental Matters Committee and the Maryland Coalition Against Sexual Assault, which includes the Maryland's 17 rape crisis centers.

"MCASA believes this would have the unintended consequence of turning transcripts into a form of sex offender registry and, in turn, would necessitate turning college disciplinary proceedings into fully litigated trials," the coalition stated. "Survivors would not be helped by this practice."

In some ways, the legislation in Virginia aims to do just that, allowing students who have been found responsible for sexual assault, but not convicted, to be more easily tracked from college to college. Virginia became the first state to require colleges to note sexual assault on a transcript in May following the disappearance and murder of a University of Virginia student, Hannah Graham. The man who allegedly abducted Graham, Jesse Matthew, has since been linked to a number of other disappearances and alleged crimes.

In 2002, Matthew was accused of sexually assaulting a fellow student while a football player for Liberty University. The university will not comment on whether Matthews was punished, but he was quickly removed from the football team following the allegations. He soon left the university, and is believed to have been suspended. No charges were filed by police.

In 2003, Matthew was again accused of sexual assault, this time while playing football at Christopher Newport University. CNU, citing privacy laws, will also not say if and how Matthews was punished, but Trible, the university’s president, points out that Matthew left the university shortly after the allegations.

Trible, following the revelation that Matthew had been accused of sexual assault before coming to CNU, pushed for the Virginia legislation.

“I reached out and said ‘very few schools do this, and it ought to be done,’” Trible, formerly a Republican U.S. senator and congressman, said. “Displaying this information puts other schools on notice that something serious has occurred and they can better protect their students. The fact that a student will carry this with them for the rest of their life should also act as a powerful deterrent.”

The federal government is also exploring the requirement, with Representative Jackie Speier, a California Democrat, introducing a bill last month that may help close the information gap. During a Senate hearing in December, Senator Richard Blumenthal, a Connecticut Democrat, said too many colleges are only concerned about getting an offender off campus, not about where the student may be headed next. Colleges, he said, should also be more proactive in asking a student's previous college about any disciplinary actions it may have taken.

The Foundation for Individual Rights in Education said this week that while it does not have an official stance on noting sexual assault on transcripts, such requirements emphasize “the importance of getting sexual assault accusations right, given the stakes involved for both” accusers and the accused. “These requirements operate under the premise that findings of facts by institutions are reliable when we know that they are not,” Nico Perrino, a FIRE spokesman, said.

Student affairs groups are split on whether colleges should note sexual assault on students’ transcripts. The American Association of Collegiate Registrars and Admissions Officers does not recommend providing any disciplinary notations on transcripts -- whether the student was disciplined for sexual assault or something less serious like cheating.

"The primary concerns have been that the transcript has been viewed as an academic record, that disciplinary suspensions can vary among institution types and that the transcript is a permanent record without an agreed upon means for how disciplinary notations could be removed, what can be discussed with other institutions and how receiving institutions should interpret and follow up on these notations," said Michael Reilly, executive director of AACRAO. "Since we are seeing more institutions adopt the practice of disciplinary notations in transcripts, increasingly by state mandates, we hope to focus on developing guidance on how best to implement this practice."

The Association for Student Conduct Administration takes the opposite view, telling colleges that if a student is suspended or expelled for a violent offense, such notations should be noted, as it could help prevent those students from simply hopping from campus to campus. Colleges should also be more proactive about asking for disciplinary information of transfers, the association noted in a white paper published last year. “Transcript notations alone will not be effective at reducing the risk of violence to a campus, but the comprehensive approach to admissions, review of information and appropriate action based on that review may be helpful to institutions as they seek to manage risks on their campuses to the best of their abilities,” ASCA stated.

At some institutions, however, knowing a student was suspended or dismissed over a sexual assault has done nothing to deter another college from enrolling him, especially if that student is a men’s basketball or football player.

Earlier this year, a female University of Oregon student sued the university, alleging that it recruited the basketball player accused of assaulting her, even though it knew he had previously been accused of a separate sexual assault at Providence College. Oregon suspended the player, as well as two others involved in the assault, but the suit also states that the university scrubbed the players' transcripts of any references to sexual misconduct, making it easier for them to transfer to play elsewhere.

The university maintains it was not aware that the player had faced sexual assault allegations at Providence, and the state of Oregon does not require colleges to note such offenses on transcripts.

All three Oregon players have since transferred to play basketball at other colleges, despite the widespread media coverage of their suspension. Last season, Alcorn State University’s football team included two players who had left their previous colleges after being accused of sexual assault. Both were high-profile cases, but neither player had trouble finding a new team to play for.

In June, the Southeastern Conference became the first athletic conference to announce it would no longer allow its members to accept transfer athletes with histories of domestic and sexual violence. The new policy states that any athletes who have been subject to official university disciplinary action for "serious misconduct," such as domestic abuse and sexual assault, at another college are not eligible for athletically related financial aid, practice or competition at an SEC program. If an athlete is later proven to be innocent, a waiver can be granted to the student.

Currently, no colleges in the SEC are required to note on transcripts if a student was found responsible for sexual misconduct.

Laura Dunn, executive director of SurvJustice, said colleges could continue to ignore the allegations even if they were required to appear on transcripts, but putting those charges “front and center” would mean colleges are more liable in the event that an offender assaults a student on their campus. Knowing they couldn’t claim ignorance, she said, could pressure institutions to act on what they learn from a transcript.

“There are realities of repeat perpetration and a school is exposing itself to risk in selecting a student with such a known history,” Dunn said. “I think colleges could still ignore it, just like it can choose to hire individuals with known previous convictions, but the liability is a reality that will deter many schools from making such choices.”