WASHINGTON, D.C. — Should the public have the right to know that a University of Maryland basketball player owes thousands of dollars in unpaid parking tickets? That question is now at the center of a battle over the scope of a federal privacy law that some say gives school officials the ability to hide almost anything from public scrutiny — with the support of the U.S. Department of Education.
A lawsuit pending in the Maryland courts, as well as a Congressional hearing on campus crime scheduled for July 17, are focusing attention on this issue.
In 1974, Congress passed the Family Education Rights and Privacy Act (FERPA), commonly known as the Buckley Amendment. Among other things, the law allows the government to impose penalties on schools that release a student’s “education records” without the student’s permission.
Since its passage, however, there have been fierce battles over what constitutes an “education record.” According to the Department of Education, the agency responsible for enforcing the law, any document related to a student and maintained by a school can be an education record and thus should not be disclosed, regardless of the public interest in access to it. Critics — and some courts — say the Department’s interpretation is too broad, and ignores the plain meaning of the term “education record,” which should refer only to documents having to do with the “educational life” of a student, such as transcripts, teacher recommendations, test scores and other academic or financial aid records kept by a school. They say the Department’s definition allows a school to simply classify as “educational” almost any record it does not want to release.
For example, until 1992, when Congress formally amended FERPA, the Department threatened to cut off federal funding to schools that released campus police records to the public.
“That interpretation was ludicrous,” says Mark Goodman, executive director of the nonprofit Student Press Law Center, which provides free legal help to student journalists and successfully fought the Department on the issue.
“Everyone, including several courts, agreed the Department was seriously misreading Congressional intent. Ultimately, Congress agreed to change the law to stop the Department from claiming that an official police report charging an adult who happened to be a college student with murder or rape was an ‘education record,'” says Goodman.
In the latest skirmish, the Department has asked a Maryland court to rule that student athlete parking ticket records are “education records” and should be closed to the public, although parking citations are normally a matter a public record in the state.
The case began after the University of Maryland student newspaper, the Diamondback, heard that a then-unnamed university basketball player had accumulated over $8,000 of unpaid parking tickets. They also heard that the player, in violation of NCAA rules, had obtained money from a former coach to help pay the fines. After school officials refused to talk, the newspaper sought more information about the case under the state’s open records law. The school turned down the request, citing FERPA.
The Diamondback sued and in March, a Maryland court ordered the university to turn over the records.
The university filed an appeal and has been allowed to withhold the records until the appeal is decided. The school continues to argue that the parking records and other information about the case are “education records.” The university was backed by both the Department of Education and the NCAA, who filed briefs asking the appellate court to overturn the lower court decision.
“The Department has made its position very clear,” says Goodman. “College and university officials obviously want to retain their ability under FERPA to keep secret any record that they think reflects negatively on the school. And the Education Department has consistently shown that it will support every such effort, no matter how damaging that position might be to students, parents and taxpayers.”
Goodman points to other evidence of the Department’s propensity to support school administrators at the expense of students.
- A Government Accounting Office report issued in March sharply criticized the Department for its failure to monitor institutional compliance with the Campus Security Act of 1990, a federal law that requires schools to compile and distribute an annual statistical report of campus crimes. To this date, the Department has failed to penalize any school for non-compliance.
- In a January 7, 1996, New York Times article, Assistant Secretary of Education David Longenacker indicated that monitoring schools’ compliance with federal campus crime reporting requirements was not a priority.
- The Department issued regulations in January 1995 that found campus court records
Mark Goodman, Executive Director, Student Press Law Center (703) 807-1904
Elizabeth Koch, attorney for the Diamondback in Diamondback v. Kirwan (202) 508-6650
Jane Kirtley, executive Director, Reporters Committee for Freedom of the Press (703) 807-2100
Carolyn Carlson, national chair, Society of Professional Journalists Campus Courts Task Force (404) 651-5258
House Subcommittee on Postsecondary Education, Training & Life-Long Learning (202) 225-4527