Should Duke be disclosing more information about its investigation into the allegations against former player Rasheed Sulaimon?
Is Duke University withholding information about sexual assault allegations made against former basketball player Rasheed Sulaimon in order to shield legendary coach Mike Krzyzewski from reputational harm? This is a provocative question. The answer, at least from a legal perspective, is much less provocative. As explained below, Duke’s refusal to share detailed information with the media appears to be the correct response under the law.
As originally reported on Monday by Duke’s student newspaper, The Chronicle, two female classmates levied separate allegations against Sulaimon during the 2013-14 academic year. The students, who were participating in student-led and school-sponsored retreats called “Common Ground,” claimed that Sulaimon sexually assaulted them. No complaint was filed with the university’s Office of Student Conduct and no information was shared with the Durham (N.C.) Police Department. It is unclear if the Duke Campus Police became aware of the allegations and conducted any investigation. The Chronicle learned from sources close to the women that, due to the popularity of the team, the women felt uncomfortable telling authorities. A source told The Chronicle that several key athletic officials nonetheless learned about the allegations in March 2014. The source claimed that Krzyzewski and athletic director Kevin White were among those officials. Sulaimon remained a member of the Blue Devils for the rest of 2014.
Sulaimon’s membership on the team came to an end on Jan. 29, 2015. On that date, Krzyzewski announced that Sulaimon had been dismissed from the team. Sulaimon became the first player Krzyzewski had kicked off in his 35 years as Duke head coach. Krzyzewski’s explanation lacked specifics but indicated that Sulaimon was “unable to consistently live up to the standards required to be a member of our program,” and that he “repeatedly struggled to meet the necessary obligations.”
On March 2, 2015, The Chronicle ran its story. This prompted numerous media requests to Duke for comment about Sulaimon, who is still enrolled as a junior and in good academic standing. There is also media interest in how the university investigated the allegations. Duke officials have effectively declined to answer these and related questions, asserting that the university is "prohibited by law" from disclosing information about any student's "confidential educational records." Krzyzewski has also refused to comment since issuing his statement in January. White, the athletic director, has issued a brief statement pledging that “Coach Krzyzewski and his staff understand and have fulfilled their responsibilities to the university, its students and the community.”
Duke’s reticence to discuss the matter has led some commentators to wonder if the university might be hiding information. It could seem disingenuous for Duke to claim that it can’t discuss allegations against Sulaimon when five weeks ago Krzyzewski publicly highlighted rationales for Sulaimon’s dismissal from the team. Is Duke really “prohibited by law” from sharing information about sexual assault allegations or is the university misconstruing the law and the legal definition of “confidential educational records”? The answer appears to be that Duke is, in fact, prohibited by law.
Legal obligations for Duke to reveal and to suppress
As a starting point, Duke University is not obligated to reveal information to the media about sexual assault allegations. Duke is a private university. It is thus outside the jurisdictional scope of the federal Freedom of Information Act and the North Carolina Public Records Law, laws which only regulate public (taxpayer funded) entities. This means that journalists cannot compel Duke to share information as they might a public university such as the University of North Carolina or my employer, the University of New Hampshire.
Duke is legally obligated to disclose and share information for other purposes. For instance, the university must comply with the federal Clery Act, which mandates that schools provide timely notice to students, faculty and staff about safety threats. Universities typically comply with the Clery Act by emailing students, faculty and staff about on-campus incidents. Information about students’ names is normally redacted in these communications. Universities in violation of the Clery Act often face warnings or fines, and can even face a loss of financial aid guarantees by the federal government. The Clery Act does not empower media when making requests of Duke.
Duke is also required to comply with reporting duties under Title IX. Those duties obligate Duke to investigate, accommodate and protect victims of sexual assault. Duke’s own sexual misconduct policy references these responsibilities by establishing an expectation that Duke employees who become aware of possible sexual assault notify the Office of Student Conduct. Duke students are also “encouraged” to report. White’s statement pledges that the athletic department has fully complied with the sexual misconduct policy. “Any allegation of student misconduct that is brought to the attention of our staff and coaches,” White writes, “is immediately referred to the Office of Student Conduct in Student Affairs.” White adds, “the athletics department does not investigate or adjudicate matters of student conduct, and cooperates completely in the process.” Whether White's assurance of compliance by the athletic department holds up remains to be seen.
But what about Duke's claim that it is “prohibited by law” from disclosing information to the public about the Sulaimon investigation? The relevant law is the Family Educational Rights and Privacy Act, better known as FERPA. FERPA, which President Gerald Ford signed into law in 1974, was intended to prevent universities from sharing students’ educational records—which generally include disciplinary matters—without students’ consent. Over the years, many commentators have asserted that universities routinely abuse FERPA. Namely, critics say, universities “hide behind FERPA,” to avoid compliance with media requests that might otherwise embarrass athletes, coaches and school officials.
Duke is not the first university to use FERPA in reference to media questions about allegations that athletes sexually assaulted women. A key legal issue under FERPA is whether Duke has rendered final judgment in reviewing the allegations against Sulaimon. Under FERPA, a university is barred from disclosing information about disciplinary proceedings against a student for a possible sex offense until there are “final results” in that proceeding and those results find fault. As a result, if Duke’s review of Sulaimon (through the Office of Student Conduct or some other office) is ongoing, the university is barred from disclosing information. It appears the review of Sulaimon is ongoing.
But if Duke has completed its review and found Sulaimon at fault, the university could: (1) confirm that the allegations were against Sulaimon; (2) describe the violations that were committed; and (3) indicate any sanctions imposed. The fact that Sulaimon was tossed off the basketball team for behavior suggests that some wrongdoing was found, although violation of team rules does not necessarily establish there was a violation of the university code of conduct. Team rules and the code of conduct rules refer to different sources of university law.
FERPA exceptions do not appear to apply to Duke’s review of Sulaimon
There are exceptions to FERPA that might be relevant to Sulaimon's situation. One is that campus law enforcement records are generally not protected by FERPA. If the Duke campus police investigated Sulaimon as potentially committing a crime, Duke likely could reveal additional information. It does not appear, however, that the Duke campus police did so since the Durham police was not aware of the allegations. Another exception to FERPA that could apply is if a grand jury is investigating Sulaimon. In that situation, Duke could disclose information, without Sulaimon's permission, in response to a subpoena. There is no indication, however, that a grand jury is investigating Sulaimon.
Even if Duke could reveal information under a FERPA exception, the university would have many good legal reasons to avoid doing so. Duke does not want to prejudice an ongoing investigation into Sulaimon, whose attorney could then turn around and argue that Sulaimon’s due process rights have been endangered by university disclosures to the media. Sulaimon could also file a complaint with the U.S. Department of Education that his FERPA rights have been violated. This complaint would likely spark a review by the Department of Education’s Family Policy Compliance Office into how Duke complies with FERPA.
While Duke’s refusal to elaborate on allegations against Sulaimon may be unpopular, the university’s approach to media disclosure appears to be the correct one under the law.
Michael McCann is a Massachusetts attorney and the founding director of the Sports and Entertainment Law Institute at the University of New Hampshire School of Law. He is also the distinguished visiting Hall of Fame Professor of Law at Mississippi College School of Law.