You’ve got to wonder who UO will have ghost-write their response this time. Tobin Klinger? Rita Radostitz? Jennifer Winters? Roger Thompson?
Tuesday’s editorial page in the Register Guard. The RG’s editorial board leads:
Federal lawmakers have trouble agreeing on anything these days, but they should have no difficulty agreeing on the need for a steel curtain of privacy to protect sexual assault victims’ counseling records at universities.
That the sanctity of victims’ — or any student’s, for that matter — counseling records is not already assured is an oversight demanding swift attention by lawmakers. The absence of privacy protections equivalent to those guaranteed by federal law to most Americans undermines counselor-patient relationships and compromises the ability of students to get needed treatment on campus.
The issue of confidentiality at campus counseling centers came to light recently when the University of Oregon gained access to a student’s therapy records, stored at the UO Counseling and Testing Center, after she informed the university last year that she planned to file a federal civil rights lawsuit against the school.
The student alleged she was raped by three UO basketball players last year. Her lawsuit, filed in January against the university and basketball coach Dana Altman, alleged, among other things, that the school violated her civil rights by recruiting one of the involved players after he had previously been accused of sexual assault at a different college. The lawsuit also claims the school violated federal and state privacy laws by obtaining her confidential therapy records in December without her or her therapist’s authorization or knowledge. The university countersued in February, but has since dropped its lawsuit under intense and richly deserved public criticism.
The UO can rightly be accused of an epic failure of judgment on this and many other aspects of its handling of this case. But it appears that a loophole in federal law allows sexual assault victims’ therapy and medical records to be released by colleges and universities.
Sen. Ron Wyden and Rep. Suzanne Bonamici, both Oregon Democrats, have asked the Department of Education to clarify its records policy. They also plan to introduce legislation closing the loophole in the Family Educational Rights and Privacy Act.
As UO professor Jennifer Freyd notes in an essay on the opposite page, the UO should return the student’s records, acknowledge its lapse in judgment and act to prevent similar releases in the future. But a fix at the federal level is essential to restoring trust in campus counseling across the country and ensuring students get the therapy they need with the requisite assurance of confidentiality.
Professor Freyd’s Op-Ed:
Trust is the foundation of all human relations. Without it, nations would meet only at heavily fortified borders, our economy could not use credit or even money, and families would fall apart.
When trust is broken, systems collapse. This is happening now at universities nationwide as students lose faith that they will be protected from sexual assault. And it is happening when students who are raped or otherwise assaulted are afraid to seek counseling from their universities.
On Dec. 8, 2014, the University of Oregon’s Office of the General Counsel requested that the University Counseling and Testing Center transfer to its office a student client’s complete therapy records. The director of the UCTC complied — but without telling the student or her therapist.
A month later the student client, known as Jane Doe, filed a lawsuit complaining that the records were transferred without her permission and against her wishes, among other charges. The treating therapist subsequently co-authored a letter confirming that “the client’s clinical records were accessed without the client’s permission or consent and without proper authorization prior to any litigation occurring.”
Since then the transfer of the records has become national news, and professional alarm has grown nationwide. University students and staff are confused about what happened and anxious about whether it might happen again. Many students have told me they are no longer willing to seek help from the UCTC. Many faculty have told me they are no longer willing to refer students to the UCTC.
This is a crisis for the UO in part because there are not sufficient alternative mental health resources for our students. A number of faculty members have repeatedly asked that the administration address this crisis; those requests have largely gone unanswered. Most recently the University Senate unanimously passed a resolution titled “Return Therapy Records and Clarify and Strengthen Privacy and Confidentiality Guarantees for Clients of all Mental Health Clinics at the University.”
Last week the controversy grew as U.S. Rep. Susan Bonamici and U.S. Sen. Ron Wyden wrote to Education Secretary Arne Duncan requesting clarification of relevant laws, particularly the Family Educational Rights and Privacy Act. Wyden noted that on-campus mental health services play a “critical role” for students, particularly victims of sexual assault.
The lawmakers’ focus on FERPA resonates with the focus of the national press on the UO case. Clearly FERPA needs to be fixed and university counseling centers need to be under privacy restrictions like those guaranteed by law to medical patients.
The policy begins: “The UCTC provides confidential psychological services to students, consistent with the parameters of state and federal laws. No information about your therapeutic work, or the fact that you have sought services, is released to anyone without your written permission (except as noted below under exceptions). This includes your parents, roommate, spouse/partner, and university personnel.”
None of the exceptions matches the events that occurred on this campus in December. It’s no mystery why UO students and professionals around the country are alarmed. Trust has been fundamentally shattered.
Most people understand the need for the highest level of privacy and trust in mental health treatment, particularly for survivors of sexual violence. However, some lawyers understand these issues when it comes to client-attorney privilege but not when students are involved. And some administrators seem to have a blind spot as well.
A university has a fundamental commitment to its students’ welfare. Students are not our enemies — not even when they sue the university. We are trusted with their education and care, and they are entitled to trust us.
What happened with the therapy records at the UO and what needs to happen next is an uncomplicated matter of about right and wrong. Excuses and platitudes will simply erode trust further. UO administrators must take prompt corrective and restorative actions. They must return the records that some employees obtained without the student’s permission, they must admit those employees made a mistake, and they must show through action, including new policies, that they will not allow it to happen again.
It is time for this university’s administrators to stop ignoring the piercing alarms all around them and do the right thing.
Jennifer Freyd is a professor of psychology at the University of Oregon.
The UO Senate legislation is here.
If the Honorable Senator Wyden and the Honorable Representative Bonamici propose legislation to amend FERPA, then we will have that debate. Until then, 34 CFR 99.31(a)(9)(iii)(B), “If a parent or eligible student initiates legal action against an educational agency or institution, the educational agency or institution may disclose to the court, without a court order or subpoena, the student’s education records that are relevant for the educational agency or institution to defend itself.” remains good law.
Jane Doe’s attorney put UO on notice of a pending law suit in August 2014, asking Park to secure and produce all relevant documents. Federal Litigator has it right.
“Bottom line: UO may certainly place a “hold” on records in reasonable anticipation of litigation and counsel may certainly access them in preparing to defend against a known lawsuit that placed the plaintiff’s emotional state at issue. Failure of in house counsel to take these steps would breach a lawyer’s duty to a client and could be legal malpractice. To that, Park notes the risk of court sanctions.
Park acknowledged he could have done things differently. Truth is, he likely offered a range of options to his client, who decided on one course of action, then reconsidered and asked Park to offer a mea culpa. Wisdom counsels restraint under the rule of law and those rules entitle both the plaintiff and defendant to zealous advocacy and due process. In reviewing this blog further, the interim nature of every key UO administrative appointment reflects mob rule and arbitrary and capricious action. Comments well above reveal that UO does not seemingly recognize white collar crime when it occurs right in front of them.” My guess is that last comment is an oblique reference to the fraudulent hiring of colleagues who drew salary and benefits, but never worked a day at UO.
[One ph redacted on the grounds that it’s my blog.]
It’s always interesting to hear Dr. Espy’s thoughts on UO Matters, but It’s been a year. I think it’s time to let go.
I’m looking forward to the resignations.