The University of Kansas is under more federal scrutiny than previously realized, with two simultaneous investigations underway into how one woman's sexual assault cases were handled. In addition, the school has been under monitoring by the U.S. Department of Education for a separate case from three years ago -- a fact not previously disclosed to the campus community.
New documents obtained by The Huffington Post show that KU, in Lawrence, Kansas, is currently the subject of a pair of simultaneous investigations by the U.S. Department of Education's Office for Civil Rights -- thus accounting for two of the 150 investigations OCR is carrying out at colleges nationwide. KU is also being monitored as a result of a sexual violence case that was resolved in 2012, to ensure that the school is implementing the terms of a resolution agreement. The 2012 case is unrelated to the current investigations.
The university has already taken steps to address student concerns regarding sexual violence. Earlier this year, a task force laid out a set of recommendations aimed at improving the school's handling of cases. And the federal investigations, in and of themselves, are not proof that the school has violated any laws.
Still, the issues that led to OCR's second investigation of the University of Kansas tap into privacy concerns that have arisen at other schools. And they show how tricky it can be for a university to navigate the various federal laws at play when handling a student's sexual violence complaint.
KU's entanglement with the federal government has unfolded along a complicated timeline involving multiple investigations by multiple parties. The roots of OCR's two current cases at KU go back to autumn 2013, when the school opened an investigation of its own after a female undergraduate accused a male undergrad of sexual assault. After the woman accused the male student, he admitted to campus police that on the night in question, he'd continued to have sex with the woman even after she told him to stop. The female student, whom HuffPost has spoken with, asked that she and her family remain anonymous in this story for privacy reasons.
KU found the male student guilty of "nonconsensual sex" and sanctioned him with probation and a ban from student housing. The school also considered ordering the male student to perform community service, but ultimately chose not to, because it would have been "strictly punitive," documents show.
The university attempted to justify its punishment of the man in part by citing a previous sexual encounter between the two students, saying it was a "mitigating factor," according to new materials obtained by HuffPost. The woman said the previous encounter, too, was nonconsensual, and asked for a separate investigation into that incident.
KU opened the second sexual assault investigation in May 2014, and took more than 200 days to complete it -- even though federal guidelines say such investigations generally ought to take no more than 60 days. KU did not provide updates throughout the second investigation, according to the woman's family. The family believes the school may have delayed the second case because the woman had not been satisfied with the results of the first investigation.
"We had no issue with IOA the first time around -- they were professional, they did their job," the woman's mother told HuffPost. ("IOA" is the school's Institutional Opportunity & Access office, which handles investigations into sexual assault accusations.) "The second time around, our interaction with IOA was completely different. It seemed they lacked neutrality from the start."
The school ultimately decided in its second investigation that the male student had done nothing wrong.
The federal government got involved in July 2014, when OCR opened an investigation of the University of Kansas due to a complaint filed by the female student over the mild punishment of the male student.
OCR's second ongoing investigation of KU, which it launched just last month, stems from a complaint alleging that administrators tried to get the female student to waive her federal privacy rights during the school's own second investigation -- the one that began in May 2014 and lasted more than half a year.
As KU started that second investigation last spring, the university asked if the woman would sign a Health Insurance Portability and Accountability Act release form so that administrators could review her therapy records. Jane McQueeny, director of the university's IOA office and a former federal government staffer at OCR, said that investigators were searching for corroborating evidence beyond the woman's complaint. The woman's attorney told the university on May 19, 2014, that she "decided the sanctity of her communications with her therapist should not be intruded upon," according to emails shared with HuffPost.
"While I appreciate [the woman's] position on the release of her medical records this will make the investigation more difficult," replied McQueeny in an email.
The woman's mother told HuffPost that KU's request for the therapy records felt to her like an attempt to "discredit" her daughter -- that she had the impression the school was hoping to find something in the records that it could then use against the woman.
"The confidentiality of that relationship needs to be honored," the woman's mother said. "Otherwise, students will not come forward."
The school told HuffPost in a statement that it "works with complainants and respondents to get as much information as possible that would help him or her in regard to a sexual assault complaint."
"When medical or mental health documents are relevant and important evidence in the investigation, a complainant is given the option of executing a release to allow the investigator to review the records," the school said. "At all times the complainant has control over what information he or she shares."
Victims' rights advocates have bristled at similar situations elsewhere, and experts have urged schools to be judicious about trying to access the medical records of alleged sexual assault victims.
"Once you take confidentiality away [from counseling services], students stop coming," said Brian Mistler, associate dean of students and director of health services at Ringling College of Art and Design in Florida.
However, Peter Lake, director of the Center for Excellence in Higher Education Law and Policy at Stetson University, speculated that requests like KU's to bypass privacy laws could be coming "from a friendly place."
"It might be that an investigator thinks [the records] will help nail down the perpetrator that they believe committed the crime," Lake said. "So it might feel oppositional, but it might not actually be oppositional."
According to the woman's family, in September 2014 -- following a HuffPost report about the first sexual assault case, but prior to the conclusion of the school's second investigation -- KU asked if the woman would like to sign a Family Educational Rights and Privacy Act release allowing the school to discuss her case with two media outlets. The university's lawyer warned the woman to use caution if she wished to agree to a FERPA release, and asked her to think about the "potential impact."
The woman ultimately declined to sign the release. The University of Kansas told HuffPost it would never discuss a student's case without their permission.
Lake said a situation like this demonstrates that HIPAA and FERPA were not created with "any of these types of scenarios in mind" and likely need to be reformed.
"I really feel for campuses, because they’re being asked to run a criminal justice-type system," Lake continued. "But this one is largely closed off to public scrutiny because of rules written long ago, before the system even existed."
Colleges Under Federal Investigation For Sexual Assault Cases: