At the heart of the recent judicial controversy involving the Honor Committee, the University Judiciary Committee and The Cavalier Daily was a fundamental dispute about the nature of the confidentiality rules pertaining to the first organization. Whereas Honor Committee Chair Ann Marie McKenzie argued that The Cavalier Daily managing board violated confidentiality by publishing its Sept. 12 editorial, "Taking action," in response to several plagiarism incidents and noting that "the paper reported the incidents to the Honor Committee," the paper's leadership construed the right to confidentiality as applying merely to the student involved in the honor proceedings rather than to the body as a whole. Therefore, the managing board believed it had adhered to the Committee's confidentiality rules by omitting from the editorial any personally identifiable information related to the plagiarist.
A close reading of Article V of the Committee's by-laws, which articulates its confidentiality rules, lends support to this position. It explains that the right to confidentiality in honor proceedings attaches to "[a]n investigated, accused, or dismissed student" and that "[o]nly upon the giving of [a] waiver are other participants in any Honor proceeding released from their responsibility to maintain confidentiality with respect to that student." These phrases indicate the managing board stayed well within the bounds of Committee rules when it published its editorial, since there is no language in Art. V that provides for a corresponding "responsibility to maintain confidentiality" with respect to the Committee's operations.
It is perhaps the case that the Committee internally interprets Art. V as prohibiting any discussion of ongoing proceedings, regardless of whether they are described in abstract or particular terms. If so, however, this is left hopelessly unclear to the rest of the University community, which only has the five sentences worth of information included in Art. V to work with when interpreting the Committee's stance on confidentiality. Consequently, the Committee must clear up what is meant by confidentiality if it hopes to prevent even more students from abandoning their roles as active participants in the honor system. For as the Committee's own website states, "the Honor System can only act effectively where it is reasonably well-known and understood."
Furthermore, the recent controversy has illuminated an even more troubling aspect of the Committee's approach to confidentiality. As was made clear by McKenzie's decision to file charges against the managing board for allegedly violating the Committee's confidentiality rules, the body expects the University community as a whole to respect Art. V of its by-laws. McKenzie is hardly the first honor chair to have viewed confidentiality as binding upon the entire University community; in fact, this position is codified in Standard of Conduct 11, which states that no University student shall engage in "[i]ntentional, reckless, or negligent conduct which obstructs the operations of the Honor or Judiciary Committee, or conduct that violates their rules of confidentiality." Thus, McKenzie was interpreting the scope of the Committee's confidentiality rules in the same way as the University administration and the Board of Visitors, which approves the Standards of Conduct.
Yet this makes what should be an internal Committee policy binding upon all University students. After all, the confidentiality requirement in the Committee's by-laws derives from the Family Educational Rights and Privacy Act, a federal law that prohibits the disclosure of "student education records" by "all schools that receive funds under an applicable program of the U.S. Department of Education," according to the department's website. This means FERPA is not binding upon the individual students who attend those schools, but rather the faculty, staff and administrators who are acting in some capacity as employees of the state.
FERPA does, indeed, apply to Committee members since they are carrying out functions delegated to them by the University administration. The confidentiality rules that stem from the law cannot, however, be extended to all University students since they inherently constrain free speech. Although this is rarely an issue since students involved in most honor proceedings stand to gain nothing by revealing the identities of the accused, it can cause problems in cases where individuals or organizations must, in accordance with their responsibilities as employers or partners of the accused, publicly acknowledge the offenses that occurred. For example, if a student group working together on a research proposal received outside funding but later discovered that one of its members plagiarized a portion of the proposal, then it would be impossible for the other members of the group to both report the plagiarist to the Committee and explain transparently to the funding source what disciplinary steps were taken.
Moreover, in cases of public interest the confidentiality rules limit the ability of student publications to provide accurate accounts of ongoing proceedings, which violates the First Amendment right to freedom of the press.
Although the maintenance of confidentiality in honor proceedings generally supports the notion of a "community of trust" at the University, this is not a sufficient defense against Constitutional deficiencies. Accordingly, the University and the Committee must think carefully about the original meaning of confidentiality before clarifying to students what their responsibilities are with respect to the honor system.
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