Author Topic: ND AG says we get to find out what happened with the anti-semitism thing (maybe)  (Read 1647 times)

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Offline Sal Atticum

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See, it's funny because the story now is the opposite of what it was when people were screaming for blood when this was happening.
AG rules UND violated open records law
Stephen J. Lee Grand Forks Herald
Published Monday, December 01, 2008
North Dakota Attorney General Wayne Stenehjem ruled Monday that UND violated the state’s open records law when it refused to give the Herald information last spring about how it disciplined students involved in writing graffiti aimed at a Jewish student in a dorm.

Stenehjem was responding to a request for an opinion from Herald Publisher and Editor Mike Jacobs.

The underlying incident involved “possible anti-Semitic behavior,” Stenehjem said in his ruling, including a scrawled “Scott is a Jew,” in ice cream in a dorm elevator aimed at student Scott Lebovitz.

Other students allegedly were involved in taunting and harassing Lebovitz and UND said it disciplined one or more students in West Hall for actions including taunting Lebovitz, marring UND property with graffiti and possessing or using mock weapons, such as an air rifle, in the dorm.

UND administrators told the Herald last summer that they had imposed institutional punishments on one or more residents of West Hall, but wouldn’t say what the punishment was, or how many were punished.

UND, citing the federal Family Educational Rights and Privacy Act, or FERPA, said the disciplinary records could be kept confidential. Because Spencer Garness’ name had been made public through the charges filed against him, UND said any information about student discipline would inappropriately identify him, under FERPA guidelines on student confidentiality.

In his opinion issued Monday, Stenehjem said while FERPA can provide an exception to the state’s open records laws, UND erred in rejecting the Herald’s request.

“FERPA does not prohibit the release of disciplinary proceeding records if an educational institution can adequately remove all personally identifiable information from those records,” Stenehjem concluded. “The University of North Dakota violated the open records law when it incorrectly responded that FERPA prevented the release of all disciplinary proceeding records and because it failed to consider whether the requested records could be released after removing all personally identifiable information.”

Lebovitz finally moved out of the dorm because of harassment, he told the Herald. The incident, added to several other acts of graffiti, including what was called a misshapen swastika in one instance and other racist words written on UND property last spring, attracted widespread concern from Jewish groups, including the Anti-Defamation League’s Midwest chapter.

Garness was charged with disorderly conduct for allegedly writing the message in ice cream. But a judge later dismissed the case, after the Grand Forks County State’s Attorney later requested the dismissal, saying the alleged act did not meet the definition of criminal behavior.

The county state’s attorney declined to charge another student with allegedly scrawling racist graffiti, saying there was not enough evidence to bring a case.

Both Garness and Lebovitz are students still at UND.

Monday, Garness said he has seen Lebovitz on campus this fall. “We don’t talk, but we are civil,” he said.

Garness said he admitted doing the ice cream scrawl, but that it wasn’t an anti-Semitic comment.

He declined to comment further and referred other questions to his attorney, Joel Larson, Grand Forks. Larson said Monday that Garness told police at the time his ice cream graffiti was part of dormmates exchanging insults, not hate speech.

“It was a big group of roommates and suitemates and neighbors and each gave each other a hard time,” Larson said. The insults were tailored to each person, he said. Garness’ lack of height, for example, was an object of the gibes, as was Lebovitz’ Jewishness, Larson said. “Insensitive? Sure. But that’s just the nature of college humor these days.”

Lebovitz sees it differently.

In July, Lebovitz told the Herald he was disappointed Garness was not prosecuted. “They were saying it was a prank among friends,” he told the Herald in July. “A prank among friends is different. It’s like throwing a water balloon or something stupid. Friends don’t treat friends like that.”

Lebovitz said Garness was part of, but not the leader of, a group of students who taunted him about being Jewish and led to him leaving the dorm.

Monday, Lebovitz responded via e-mail to a Herald request for his comment on Stenehjem’s ruling.

“First of all, this is a really awesome thing to see,” Lebovitz said. “This is the first time that an independent governing institution said that UND was in the wrong in any form. Here is the first time that someone is taking this seriously. We can see how serious UND took this issue. No one really knows what the punishments were, if anything.”

Lebovitz said he’s glad the issue is being raised again because questions about anti-Semitism in art and culture are common and even came up recently in his music class.

He said, as he did last spring, that he did not count himself as a close friend of Garness and others involved in the harassment.

“We were not friends. More like acquaintances; we had some mutual ‘friends.’ I use the word ‘friends’ loosely because throughout this whole situation we no longer speak and associate with each other.”

Last spring, Lebovitz and his supporters, especially UND philosophy professor Jack Weinstein, a faculty advisor to Jewish students, sharply criticized UND’s then-president, Charles Kupchella, for not responding quickly or dramatically enough to the incidents. President Robert Kelley succeeded Kupchella last summer.

Stenehjem’s opinion doesn’t mean UND necessarily will have to release the information to the Herald.

UND has seven days to review the records of discipline meted out and can still decide that the information would be “easily traceable” to the student, even after redacting directly identifiable information, and withhold all records on that student, Stenehjem ruled.

In that case, UND then would have to give the Herald “an accurate explanation” for withholding such information, Stenehjem said.

Julie Evans, UND’s general counsel, said she had only time Monday to give Stenehjem’s opinion an initial and cursory perusal.

“The university will make a written response to the Grand Forks Herald,” she said, adding it will come within the seven-day period lined out by Stenehjem.

“Obviously, we are pleased,” Jacobs said Monday. “We thought going in that UND was interpreting the law narrowly, more narrowly than it is written, and the attorney general agreed with us. So, it’s always nice to be proven right in an argument with a lawyer.”

Reach Lee at (701) 780-1237; (800) 477-6572, ext. 237; or send e-mail to

Offline Sal Atticum

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More details, in an editorial hoping for a more open UND under Kelley.

Last spring, the Herald had asked UND for redacted records about how had the university had disciplined students who had harassed a Jewish student in a dorm. The key word there is “redacted”: The Herald asked only for records from which all information identifying the students had been blacked out.



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