Education privacy law used as excuse to used to conceal records

By Frank Lomonte

Education is a $1.1 trillion industry in America, one requiring vigilant public oversight – oversight that increasingly is frustrated when answers to simple questions are concealed behind an impenetrable wall of “student privacy.”

Ask a public university or a school district anything about any issue of public importance – sexual harassment by employees, crime on campus, athlete recruiting scandals – and you can expect to hear: “We can’t tell you anything because of FERPA.” Even when they know it’s not true.

The Family Educational Rights and Privacy Act, a well-intentioned federal law requiring schools and colleges to maintain the confidentiality of “education records,” has been distorted by educational institutions into a catch-all excuse to conceal wrongdoing and mismanagement.

When reporters wanted to know why the University of Iowa fired two vice presidents for mishandling a student’s sexual assault case, the college fought in court to withhold its internal investigation – labeling the report a “student record.” When journalists in Ohio wanted emails between Ohio State’s head football coach and a local auto dealer that might have shed light on the suspiciously luxurious cars driven by Buckeyes players, the college withheld their emails as “education records.”

This is obviously nonsense – but the courts too often have failed in their duty to defend the public’s right to know, subordinating real transparency concerns to imaginary privacy ones.

It’s been said that a talented district attorney can convince a grand jury to indict a ham sandwich. Well, a talented school lawyer can convince a judge that the ham sandwich is a confidential education record.

Ironically, FERPA began its life in 1974 as a statute with the purpose and intent of protecting students not against inquisitive journalists, but against the police.

Sens. James Buckley and Claiborne Pell appended FERPA (often referred to as “the Buckley Amendment”) onto a Senate education bill because they were alarmed that law enforcement agencies might demand access to psychological tests in students’ school files to profile them – without the students even knowing the files existed or having a chance to challenge their accuracy.

From that modest beginning, aggressive school lawyers have taken advantage of Congress’ sloppy draftsmanship and the laziness of credulous judges to transform FERPA into a secrecy blanket that makes campus scandals disappear.

Here is the reality of FERPA that school lawyers (and too often, judges) overlook: The U.S. Department of Education, which has sole authority to enforce the statute and impose financial penalties, has never fined anyone a penny in the statute’s 43-year history – because being a violator requires not just granting one request for public records, but maintaining a “policy” of handling records insecurely.

The Department has told schools – over and over – that FERPA is an exceedingly narrow law that protects the confidentiality of documents, but not of facts or information. What that means is, a school official can’t share a student’s disciplinary file with the media, but can say from personal knowledge and observation what the student did.

That hasn’t stopped institutions from obstructing access to otherwise-public documents by miscategorizing them as “education records,” even when there’s nothing either confidential or educational in them.

It’s not just journalists who encounter “the FERPA roadblock” when seeking information about the performance of educational institutions. Academic researchers regularly report that essential school-accountability statistics – about student academic progress, about the use of restraints and corporal punishment, about racial disparities in discipline – are sealed off behind dubious FERPA confidentiality claims, even without names attached.

And if you 

are a parent whose child is attacked at school, you’ll be told that the security video identifying the attackers is a confidential FERPA record off-limits for your inspection – and that whether the attackers have been disciplined is a FERPA-protected secret as well.

With their expansive claims that every scrap of paper in the building is a confidential education record, schools and colleges have made themselves impervious to second-guessing by concerned citizens, who have no way of knowing whether campus misconduct is adequately investigated and equitably punished – even when the wrongdoer is a government official.

Three key potential test cases are making their way through the judicial system right now. These cases will go a long way toward establishing whether FERPA really is a “get-out-of-accountability-free card” for school and college officials or whether it is the narrow statute that its drafters, the Supreme Court and the Department of Education have always said it is.

High school journalists in Minnesota are suing their school for access to footage from a hallway surveillance camera that will help establish whether authorities looked the other way in failing to discipline a popular football player who was accused of assaulting a student over her Muslim hijab.

An alliance of college and professional newspapers is battling the University of North Carolina-Chapel Hill in court over access to records of disciplinary cases brought against students accused of sexual assault, resolved in closed-door proceedings before campus disciplinary tribunals notorious for meting out wrist-slap penalties.

And in Kentucky, a pair of lookalike cases brought by the University of Kentucky and Western Kentucky University will determine whether the personnel files of employees accused of sexually harassing students can be categorized as “education records” and withheld from disclosure.

In each case, compelling public-accountability imperatives lean decisively in favor of access. Disclosure may reveal that, in each instance, campus officials have fallen short in their responsibilities to keep students safe – or may vindicate them and restore public confidence.

Without access to these vital records and to countless more like them, colleges and schools will increasingly operate under a “trust-me-I’m-the-government” honor system. If the courts cannot see that, then Congress must – and must overhaul FERPA to more narrowly define “education records” and sternly punish those who wrongfully invoke “student privacy” for image-motivated concealment.

Attorney Frank LoMonte is Executive Director of the Student Press Law Center, a nonprofit advocate for the transparency of schools and colleges.