If you’ve ever submitted a public records request to a school, or you’re an education reporter, chances are you’ve heard of FERPA, the Family Educational Rights and Privacy Act.
FERPA mandates that schools that receive federal funds protect a student’s “educational records” from disclosure under threat of federal sanctions. If a school fails to comply with the law, it stands to lose federal money.
While anyone can understand the privacy of a student’s education records, it is more often than not the goto barrier that education administrators use when they don’t want to bother with journalists’ pesky FOI requests.
The problem lies within the ambiguity in defining an “educational record.”
Colleges have been flippantly using the FERPA excuse, especially so within the past year when the U.S. Department of Education began releasing the names of colleges under Title IX investigations. This disclosure sparked a much-needed national conversation about how the schools handle sexual assault. However, the increased scrutiny by reporters has led to the FERPA excuse being used more often to stop journalists seeking information related to a school’s sexual assault investigation, which, it’s worth noting, is not an educational record.
A project by the Student Press Law Center, known as “FERPA Fact,” keeps an ongoing catalog of instances where FERPA is cited to deny public records and then gives it a rating of legitimate use of FERPA, questionable use or not protected by FERPA.
Here are a few examples of the questionable, and not protected, uses of FERPA:
• Bwog, an independent student-run publication at Columbia University, was denied a list of names of alleged rapists written on the walls of bathrooms because the administrator claimed it would violate FERPA.
• The University of Michigan relied on FERPA by claiming the statute wouldn’t allow it to comment on a football player who was expelled for sexual misconduct.
• The University of Oregon claimed its own employees’ emails that discussed a sexual assault case were protected by FERPA and denied several news outlets, including The New York Times, access to them.
• A California college claims that FERPA prevents them from disclosing whether a convicted sex offender was expelled.
The SPLC has also started a campaign to “Break FERPA” due to its arbitrary overuse in the educational world. SPLC executive director Frank LoMonte, the go-to expert on FERPA, wrote an opinion piece for Inside Higher Ed explaining why FERPA should be deemed unconstitutional (see tinyurl.com/LoMonteFERPAEssay).
LoMote draws a parallel with comments Chief Justice John Roberts made when the Supreme Court ruled on Obamacare:
“Roberts wrote, the coercive bargain — to greatly expand the rolls of Medicaid-eligible patients or forfeit every dollar of federal Medicaid funding — simply went too far: ‘(T)he financial ‘inducement’ Congress has chosen is much more than ‘relatively mild encouragement’ — it is a gun to the head.’”
If the only option states have was to comply with the law or forgo every dollar of federal Medicaid funding, then how would this apply to FERPA and federal education funding?
In another case, a federal court ruled that FERPA was not an excuse for the University of Illinois to withhold records requested by the Chicago Tribune. Because the loss of federal Pell Grant revenue would be devastating for the college, it presented the same dilemma states faced in regard to the coercive bargain of Obamacare.
“In the university’s successful appeal to the 7th Circuit U.S. Court of Appeals, the American Council on Education and nine other education groups filed a supporting brief arguing that FERPA is, to use Justice Roberts’ words, ‘a gun to the head’ of their member institutions,” LoMonte wrote.
LoMonte calls FERPA a “dead statute walking.”
He’s right — or at least he should be. But it’s ultimately going to take journalists and news outlets, and the public as a whole, to challenge it.
David Schick was SPJ’s 2014 Pulliam Kilgore Freedom of Information intern, and a senior journalism major at the University of Georgia. Interact on Twitter: @davidcschick