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Colleges Must Balance Privacy, Transparency With Expected New COVID Cases

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College and university leaders face many tough decisions this fall about how to contain the spread of COVID-19 on their campuses. And inevitably when there are cases, those same leaders will have to decide how much information to share with their campus community, the public, and the media.

Experts say don’t be surprised if Illinois State and Illinois Wesleyan provide only very general information about new cases. They say federal law prohibits the release of any information that could allow an intrepid sleuth to figure out who in a particular class or building has contracted COVID-19.

ISU, for example, will only reference a "member of the campus community" when reporting on-campus cases. It won’t specify if the person is a student, faculty, or staff member.

That’s what Elizabeth Timmerman Lugg would have advised. She’s an associate professor of education law at ISU.

“I don’t think we’ll get much information if there’s an outbreak on ISU’s campus, other than just in a very general sense,” Timmerman Lugg said.

Universities are limited in part by the Family Educational Rights and Privacy Act, or FERPA, which governs what you can do with a student’s education records. Generally, a student’s information can’t be released without their consent—with few exceptions. One of those exceptions is for a “health or safety emergency,” but even then the information only can be released to public health departments. The U.S. Department of Education issued coronavirus-related FERPA guidance in March.

"Colleges have an obligation to their students to be transparent."

“It’s to the extent (health departments) need it to know the identity of the student, or some of that identifying information about the student, to remedy or address the emergency situation,” said Emily P. Bothfeld, an attorney with Chicago-based Robbins Schwartz, who focuses on student-related matters. “(The exception) can’t be invoked to allow a blanket disclosure of personally identifiable information to just anybody who requests it.”

ISU “will be providing some information related to any positive cases on campus,” said spokesperson Eric Jome, adding, “With any reporting, it is important to balance the need to keep the campus informed with protecting patient privacy.” 

If there is an outbreak at, say, the Tri-Towers or Watterson residence halls, Timmerman Lugg said it would be OK for ISU to disclose that. Indeed, Jome said “should a significant number of cases be linked to a particular area of campus operations, the university would provide the campus community with timely notification, as provided to it by public health officials, along with information on steps taken to address that particular situation.”

“But you couldn’t break down if there were 10 students in Dr. Smith’s class testing positive, because with very little work you could figure out who’s in Dr. Smith’s class,” said Timmerman Lugg. “It’s very subjective. But when I advise institutions, err on the side of being more general, because no one needs to know that.”

This is where contact tracing is used. The McLean County Health Department (MCHD) will lead that effort at both ISU and IWU.

Clery Act implications

ISU and IWU have each launched their own coronavirus websites with tips for prevention and answers to frequently asked questions.

ISU does not yet have a dashboard or any single online resource with a current tally of active and recovered cases to date, comparable to MCHD's COVID-19 page that is updated daily. Information about ISU cases has come out in bits and pieces. In early May, the public learned that seven ISU students contracted COVID-19 at a private residence, and that ISU reported its first on-campus confirmed case. Separately, four student-athletes tested positive in June and July.

This is where another federal law—the Clery Act—comes into play. It requires institutions to disclose information about crime and emergencies occurring on or near campus.

The U.S. Department of Education told schools in early April that it “does not interpret the statutory language as requiring institutions to give regular, ongoing updates on COVID-19 or to proactively identify positive COVID-19 cases within the campus community.” A college can satisfy the emergency notification requirements of Clery simply by putting a banner on its homepage linking to COVID-related information, which is what ISU and IWU both did.

“While (Illinois Wesleyan) University does not plan to notify campus with each occurrence of a COVID-19 case, the Emergency Response Team (ERT) in conjunction with the McLean County Health Department will determine when it may become necessary to distribute a campuswide message,” said IWU spokesperson John Twork.

As long as they avoid that FERPA-prohibited personally identifiable information, colleges and universities are free to share the number of cases and other general information whenever they’d like, said Scott Z. Goldschmidt, an attorney with Thompson Coburn LLP based in Washington, D.C.

Transparency is the best option, said Goldschmidt, a former deputy general counsel for a private university.

“Colleges have an obligation to their students to be transparent. It’s not a legal obligation. Just a moral one, to be transparent and make sure everyone is on notice of everything,” he said.

One challenge, Bothfeld said, is that much of the U.S. Department of Education’s coronavirus-related guidance came out in the spring, when colleges had just abruptly shifted to online-only classes and campuses were mostly empty.

“There wasn’t the same level of concern … because we didn’t have students regularly coming to campus and interacting with each other and seeing their instructors and walking the halls and things like that,” Bothfeld said. “But at some point, whether its students are coming back right at the beginning of the semester or later in the fall, these questions will become more prevalent because we’ll have more people on campus.”

The Department of Education’s guidance on Clery, for example, is limited and not binding. It also was issued well before COVID’s summer resurgence.

“Schools need to weigh, is one isolated case sufficient to provide a Clery notice? Is it two?” Goldschmidt said. “Unfortunately, if there’s case after case of this, I assume colleges won’t want to send daily or weekly Clery notices of potential cases. So when does is rise to the level of an emergency that would require this disclosure?”

Goldschmidt said we’re trying to apply laws written for a normal college environment to the completely unusual COVID situation.

“There’s not any precedent to what happens here,” he said.

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Ryan Denham is the content director for WGLT and WCBU.