slide8_1of4The Student Press Law Center (SPLC), a national nonprofit watchdog for keeping records of schools, colleges and universities open to student journalists and others, is sounding the alarm about pending draft amendments to federal law that could make such information more available to the public—or far less so. The Family Educational Rights and Privacy Act (FERPA) has frequently been used by public educational institutions to foil public records requests about campus crime and other matters of legitimate general interest.  Anything—not just grades, counseling and disciplinary files—remotely involving an identifiable student—from preschool to post-doc—is typically withheld as the contents of a pupil or student record, whether or not the information has to do with education or is found in the student’s file.  Schools releasing information in violation of FERPA are threatened with the loss of federal funding.

Here’s the SOS received today from Frank Lo Monte, SPLC’s executive director.  You can help by informing us of any use of FERPA you have been met with that kept otherwise public inofromation secret.

Friends, the abuse of student privacy laws to conceal public records has become a more urgent concern as news organizations are roadblocked in their attempts at covering the issue of sexual assault on college campuses (see as one of many recent examples this piece in Oregon’s Register-Guard).

Sens. Markey and Hatch have floated draft legislation responding to privacy advocates that would amend FERPA in an unhelpful way for transparency, and we are urging them to hold a hearing at which those concerned about open government can be heard in hopes of opening a discussion about wholesale FERPA reform. Some background about their draft bill and a link to the draft appears here:

The Student Press Law Center has prepared a letter of concern, the text of which appears below, and we’d like to hear by 12 noon Tuesday, June 10, from any organization interested in signing on.

Many thanks,

Frank D. LoMonte, Esq.
Executive Director
Student Press Law Center

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Dear Senators Hatch and Markey,

Thank you for starting an important discussion about reforming the Family Educational Rights and Privacy Act (“FERPA”), the federal student confidentiality statute addressed in your draft legislation of May 14. We appreciate the opportunity to comment on your discussion draft of the Protecting Student Privacy Act of 2014, and we hope this letter can be the start of a conversation about comprehensively modernizing this terribly broken statute, which – as applied at many schools and colleges – affirmatively impedes campus safety and student welfare.

Our organizations speak for the many thousands of requesters whose attempts to obtain information of public concern about the workings of schools and colleges have been needlessly frustrated by the misapplication of FERPA. As widely misused by educational institutions, FERPA has become an impenetrable cloak concealing essential information about school safety and effectiveness, even where no conceivable student privacy interest could be at stake.

Your legislation focuses on legitimate questions raised by privacy advocates about the safe handling of sensitive student data, a concern with which our organizations have no quarrel. However, the deficiencies to which the Act is directed address only one aspect of the much broader problem with FERPA. While excessive sharing of confidential data can place students’ well-being at risk, so can excessive secrecy. To rewrite FERPA without addressing the well-documented overcompliance that obstructs vital public accountability interests would be a missed opportunity.

State open-records statutes entitle requesters – journalists, citizen watchdogs and family members alike – to obtain access to records from public colleges and schools unless specific privacy exemptions apply. Courts generally have construed FERPA as creating an exemption entitling schools and colleges to withhold otherwise-public documents that qualify under FERPA as “education records.”

Of course, the public rarely, if ever, will have legitimate grounds to seek access to grades, attendance sheets, test scores or transcripts (and even apart from FERPA, state public-records laws typically allow agencies to withhold documents if disclosure would constitute an unwarranted invasion of privacy). Those core educational documents are not at issue. Rather, our concern is for records in which the public has a compelling disclosure interest and in which disclosure implicates no legitimate student privacy concerns. Imprecise language in the statute has produced nonsensically broad interpretations by courts, by the Department of Education and by educational institutions themselves, routinely resulting in concealment that puts safety and accountability at risk.

To give just a few recent examples:

·         At Oklahoma State University, administrators purposely failed to notify police or warn the campus of a known serial sex offender at large in their community, maintaining that FERPA confidentiality prevented them from doing so.[1]
·         The Ohio Department of Education refuses to release county-by-county data showing how many times firearms were found in schools, insisting that FERPA forbids disclosing even numbers devoid of personal identification.[2]
·         At the University of Michigan, officials refuse on FERPA grounds to explain why a college football player accused of a 2009 sexual assault – whose name and photo have already been published in the national news media in connection with the case – was allowed to play for four years before being expelled.[3]
·         The parents of a Valdosta, Ga., student inexplicably found dead in his high school gym were forced to file suit to obtain access to a surveillance video capturing his last moments. Likewise, a father in Sandy, Utah, has been forced to sue his son’s school to obtain a surveillance video showing how his son was injured in a fight, and a family in Buffalo, New York, has been denied access to a video of the high school football game at which their son was fatally injured, on the grounds that recordings of football games are “education records.”[4]

These are merely illustrative, and by no means exhaustive, examples of the absurd roadblocks imposed between the public and its information in the name of compliance with a confusing statute that has been vastly expanded beyond its narrow intended confines. The primary author of FERPA, former U.S. Sen. James Buckley, has called for Congress to reassess the statute in light of the overwhelming evidence that it is being invoked for illicit concealment purposes: “The law needs to be revamped. Institutions are putting their own meaning into the law,” Buckley told the Columbus Dispatch after it was disclosed that college athletic departments were using FERPA as an excuse to withhold non-educational public documents including the manifests from football-team flights.[5]

At a time when Congress, the White House and the Department of Education are focusing unprecedented attention on the inadequacy of colleges’ response to sexual assault on campus, part of that inquiry should focus on the misuse of FERPA to conceal information about campus safety. While Congress has twice amended the statute to clarify that FERPA does not apply to records created for law enforcement purposes or records of the final outcomes of disciplinary cases involving violent crimes, colleges have widely ignored these revisions and continue withholding essential public-safety information on FERPA grounds, because the statute fails to penalize wrongful over-classification.[6]

Your bill can provide the vehicle for a broad-based inquiry into reforming FERPA and restoring it to its originally intended purpose: A statute empowering students and their families to inspect and verify files containing confidential behavioral assessments that institutions might share with law enforcement agencies to the detriment of the student. In the words of editors at Raleigh’s News & Observer, which has been forced several times to sue the University of North Carolina-Chapel Hill over wrongfully withheld public records about scandals within the UNC athletic department:

FERPA needs to be refined in light of its multiple interpretations. Congress should revise the law to specify what is protected and make explicit what is not. And in cases where academic fraud is confirmed – especially at public universities – there should be more latitude about the release of information to the public.[7]

We would welcome a meeting with your staffs to discuss what properly belongs in a comprehensive reform of FERPA. In the interim, we hope you will address the following shortcomings of the current statute as you finalize your draft of the Protecting Student Privacy Act:

First, a lopsided incentive system that carries the theoretical threat of financial ruin motivates risk-averse institutions to over-classify public records as “confidential.” By its terms, FERPA provides only one penalty for noncompliance: Complete disqualification for eligibility for federal funding. As might be expected, the Department of Education has never imposed a penalty in 40 years of enforcing FERPA, since the only available sanction would probably result in shuttering the noncompliant institution.[8] Moreover, because the statute contains no penalties even for the purposeful, bad-faith misclassification of documents, all of the financial incentives reward concealment. Sensibly balanced incentives penalizing the frivolous misuse of FERPA to conceal public records, and realistic and non-lethal sanctions for a policy and practice of failing to safeguard the privacy of education records, would go a long way toward making this dysfunctional statute functional.

Second, the FERPA statute’s circular definition of confidential “education records” as records that contain information “directly related to a student” invites nonsensical interpretations, because it fails to incorporate the essential prerequisite that the records be private in the first place. In the absence of such a limiting definition, requesters have been forced to take colleges to court even to obtain transcripts and videotapes of government meetings that took place before a public audience if the meetings included student participants.[9] A logical starting point for clarifying the scope of “education records” is the Supreme Court’s ruling in Owasso Independent School District v. Falvo, 534 U.S. 426 (2002), in which the Court held that FERPA applies only to documents maintained in a central records repository, such as a student’s file with the college registrar (a common-sense understanding that clearly would exclude, for instance, videos of public meetings). FERPA should be aligned with the common law of privacy, so that educational institutions’ duty of confidentiality is limited to records in which there is a reasonable expectation of privacy. This alignment would allow for sensible judgment calls, in place of the “one-size-fits-all” regime of the current statute, which affords as much privacy to a 21-year-old quarterback who appears on national television every Saturday as it does to an 8-year-old child.

Specifically regarding your May 14 draft of the Protecting Student Privacy Act, our organizations are concerned that the Act as proposed risks exacerbating the overuse of FERPA in one important respect. Currently, FERPA provides that a school or college must protect the confidentiality of “education records” or “personally identifiable information contained therein” 20 U.S.C. § 1232g(b)(1). Your legislation (Sec. (4)(A) expands the scope of FERPA privacy to cover “education records and personally identifiable information held or maintained by the educational agency or institution.” As revised, FERPA would no longer apply to information derived only from “education records,” but would impede access to information from any source whatsoever, even a source as to which there is no reasonable privacy interest (for example, the football-team manifests requested by reporters from the Columbus Dispatch). This change has the potential to expand the already-excessive scope of FERPA to a dangerous and unwarranted degree. The Department of Education consistently has opined that FERPA applies solely to education records and material derived therefrom, and not to information in general,[10] and that distinction should be maintained.

We urge you to convene a hearing at which all perspectives on FERPA – including those of advocates for transparency and accountability in education – can be fully aired, and to incorporate those perspectives into a broader reform of FERPA restoring the statute to its intended common-sense boundaries.

Sincerely yours,

[1] Silas Allen, “Oklahoma State University suspends student in connection with alleged sexual assaults,”, Dec. 11, 2012.
[2] Bill Bush, “Privacy law shields school-district tallies of gun incidents,” The Columbus Dispatch, Dec. 10, 2013.
[3] George Dohrmann, “Latest details in Michigan rape case leave many unanswered questions,” Sports Illustrated, Feb. 14, 2014.
[4] Adam Floyd, “KJ family wants school video,” The Valdosta Daily Times, Oct. 11, 2013; Benjamin Wood, “Local journalists join father asking Canyons School District to release security video,” Deseret News, Dec. 4, 2013; Matthew Spina, “Parents of high school football player who died file claim,” The Buffalo News, Jan. 28, 2014.
[5] Jill Riepenhoff & Todd Jones, “Secrecy 101,” The Columbus Dispatch, Dec. 17, 2010.
[6] See, e.g., Matt Rocheleau, “Williams College roiled by report of rape,” The Boston Globe, May 24, 2014 (quoting college official claiming FERPA precludes discussing why athlete was given suspension as punishment for sexual assault).
[7] Editorial, “FERPA law too often hides what public should know,” The News & Observer, May 22, 2014.
[8] In addition to being impractical, there is every chance that, under the Supreme Court’s interpretation of Congress’ Spending Clause authority in NFIB v. Sebelius, 567 U.S. 1 (2012), it is unconstitutional to coerce states to withhold otherwise-public records with a financial “death penalty.”
[9] See Bracco v. Machen, No. 01-2009-CA-4444 (Fla. Cir. Ct. Jan. 10, 2011) (rejecting University of Florida’s contention that recordings of student senate meetings are covered by FERPA) ; see also Todd Richmond, “UW-Milwaukee settles open-records lawsuit,” The (St. Paul) Pioneer Press, Feb. 15, 2010 (reporting on college journalists’ lawsuit seeking access to recordings of campus space-allocation committee meetings, which college refused to release because student committee members’ voices were on the tapes).
[10] See, e.g., Letter to Montgomery County, Md., Public Schools, Feb. 15, 2006, from Dr. LeRoy S. Rooker, Director, Office of Family Policy Compliance (“FERPA applies to the disclosure of tangible records and of information derived from tangible records. FERPA does not protect the confidentiality of information in general, and, therefore, does not apply to the disclosure of information derived from a source other than education records, even if education records exist which contain that information.”).