In April 2021, the NCAA Board of Governors updated its Policy on Campus Sexual Violence (“the Policy”), to require all incoming, current and transfer college athletes to disclose annually to their school whether they engaged in conduct that resulted in discipline through a Title IX proceeding or a criminal conviction for sexual violence, dating and domestic violence, or other violent crimes defined in the Policy (i.e. manslaughter, aggravated assault). Transfer student-athletes must also disclose whether a Title IX proceeding was incomplete at the time of transfer. The requirements imposed by the changes to the Policy are effective starting the 2022-2023 academic year.
Schools are required to take reasonable steps to confirm the information provided by prospective, continuing and transfer student-athletes and provide it to other NCAA member schools if the student-athlete attempts to enroll in a different college or university. NCAA member schools must have policies in place to gather conduct-related information from former schools attended by recruited prospects or transfer student-athletes.
As a result of the Policy’s requirements, many schools are now receiving requests from other educational institutions asking for information to confirm the disclosures being made by incoming, current and transfer college athletes. The new requirements of the Policy are raising questions about whether schools are legally allowed to ask other institutions for students’ personal information, and whether the schools receiving these disclosure requests are allowed to disclose the requested information.
Both the Family Educational Rights and Privacy Act (“FERPA”) and the California Education Code allow the sharing of personally identifiable information about a student with “officials of another school, school system, or institution of postsecondary education where the student seeks or intends to enroll.” However, even where FERPA permits the release of information to another college, the college where the information originated from must make a reasonable attempt to notify the student that the information will be released, unless the annual student notice that is required by FERPA indicates that the college will release the information.
FERPA also provides that a college does not need the consent of a student to disclose “the final results of disciplinary proceedings” if it determines that “the student is an alleged perpetrator of a crime of violence or non-forcible sex offense; and . . . .With respect to the allegation made against him or her, the student has committed a violation of the institution’s rules or policies” and the “final results” of the disciplinary proceedings were reached on or after October 7, 1998.”
In light of the Policy requirements we encourage post-secondary institutions to develop procedures for responding to disclosure requests in a manner consistent with FERPA and California law, and to review the legality of sharing a student’s personally identifiable information. Although this alert is focused on providing information to post-secondary institutions, we note that secondary educational institutions are also being impacted by the information disclosure requirements of the Policy. Secondary and post-secondary institutions are encouraged to reach out to legal counsel in navigating the issues raised by the Policy’s disclosure requirements.