For more than 25 years, the Family Educational Rights and Privacy Act (FERPA),or “Buckley Amendment,” has protected the privacy of student educationrecords.[1] Recently, however, some school districts havegiven the Act a curious interpretation. Increasingly, secondary schooladministrators have begun to claim that FERPA prohibits student media,especially online student media, from publishing the name or photo of astudent without written consent from the student’s parent. After a closeexamination of the Act’s language and its interpretation, however, it isclear that school administrators stand on shaky legal ground in extendingFERPA’s reach to the student media.
Background
The Family Educational Rights and Privacy Act was enacted in 1974 asan amendment to the General Education Provision Act.[2]The Act applies to any public or private school, and any state or localeducation agency, that receives federal education funds.[3]Schools that violate FERPA risk losing those funds.[4] TheAct has two parts. First, FERPA gives students (and the parents of minors)the right to inspect and confirm the accuracy of their own education records.[5] Second, FERPA prohibits disclosure of most education records and “personally identifiable information in education records” without the student’s (or the student’s parent’s) written consent.[6]
FERPA also contains some exceptions. First, disclosure of student educationrecords to most school officials and to authorized law enforcement personnelis permitted.[7] The Act also allows disclosure of “directoryinformation.” Directory information means information contained in a student’seducation records “that would not generally be considered harmful or aninvasion of privacy if disclosed.”[8] Such information includes,but is not limited to, students’ names, addresses, telephone numbers, photos,participation in officially recognized activities and sports, the weightsand heights of members of athletic teams, dates of attendance, and degreesand awards received.[9] School districts that have a policyof disclosing this information must give public notice of what they consider”directory information” and inform parents that they may refuse to allowits disclosure.[10]
FERPA is meant to apply to information “collected and maintained bymost public elementary, secondary, and postsecondary education institutionsand by some private institutions.”[11] While there havebeen some problems along the way, the Act has generally served its roleas one of the nation’s strongest privacy protection laws.[12]However, for reasons unknown, school administrators around the countryhave recently started to give FERPA an entirely unique interpretation-onethat threatens the vitality and relevance of the student press.
FERPA and the Student Press
In October 2000, the McKinney Independent School District in Texassent a letter to parents informing them that photographs of students wouldhenceforth be considered “directory information.”[13] Becauseof this designation, parents were afforded the opportunity to exclude theirchild’s picture and information — including photos taken or informationacquired solely by student yearbook staff members — from the school’sstudent-edited yearbook.[14] Similarly, other schools havebegun to prohibit the publication of student names or photos without theprior written consent of the student’s parent. In such cases, student mediawould presumably be forced to keep a list of “approved” (or “non-approved”)students. The student media would only be allowed to publish the namesor photos of students on the “approved” list; students not on this listapparently would be off-limits. Presumably, students who might be the subjectof less than flattering news would be able to exercise an “editorial veto”over the student media simply by withholding their consent.
In addition to destroying the student media’s reputation as a crediblesource of news and information, such policies also present a logisticalnightmare. Student journalists, already working under the constraints ofdeadlines and sometimes unfriendly administrations, would be forced toconsult an ever-changing master list of approved subjects before writingor publishing a story. Moreover, under such a complicated scheme it isinevitable that mistakes will occasionally be made by students or schoolofficials resulting in the publication of “unapproved” names or photos.Such mistakes could expose a school district to liability that had previouslynot existed.
Finally, these policies may have serious legal implications for thestudent media. Every libel law primer begins with essentially the sameadvice: publish only complete and accurate information. The new FERPA policiesrequire student media to violate those fundamental rules. By requiringthe publication of misleading or incomplete information, a strong argumentcan be made that the new policies increase, not decrease, the odds thatstudent media-and possibly the school district that created such a faultysystem-will be subjected to libel or invasion of privacy lawsuits.
It is unclear why school district lawyers and other administrators haverecently tried to enforce such policy changes. FERPA does not require it,the Constitution almost certainly prohibits it-and common sense suggeststhe system is fraught with danger. There are many problems in today’s educationsystem that school officials would be wise to address. As the followingmakes clear, this is not one of them.
FERPA and the Courts
There are few cases dealing with the application of FERPA to the studentmedia. The extension of the law to the student media has occurred so rapidlyand recently that courts have had little opportunity to deal with the manyissues it raises. A few courts, however, have attempted to define FERPA’sscope. These cases indicate that the application of FERPA to the studentmedia is an illogical and unlawful interpretation of the Act.
In their ill-conceived attempts to use FERPA as their excuse for banningstudent names and photos in student media, school administrators generallyseem to have lost sight of one thing: FERPA only prohibits schoolsand school employees from disclosing student education records withoutconsent.
In order to subject the student media to FERPA, it is necessary to includethem in its definition of “educational agency or institution,” which theAct defines as “any public or private agency or institution which is therecipient of federal funds under any applicable program.”[15]To categorize them as such, a court would first need to rule that studentjournalists are employees or agents of their school, a classification sofar rejected by every court asked to consider the question.[16]
As one federal court of appeals wrote in rejecting a claim that highschool student journalists were the equivalent of school officials:
Of course, the fact that the newspaper editors are public school studentsdoes not, in itself, make them state actors. Persons do not become stateactors because they are clients of government services, whether they arestudents, hospital patients, or prison inmates.[17]
Even the Supreme Court’s decision in Hazelwood School District v.Kuhlmeier appears to make a critical distinction between a school andits student media.[18] The Court reasoned that schoolsshould be able to censor material that “the public might reasonably perceiveto bear the imprimatur of the school,” (emphasis added).[19] The distinction is subtle but apparent. The Court did not justify its decision on the grounds that the student media acts as an agent of the school, speaking on its behalf. To make such an argument would be to say that the FirstAmendment is not implicated at all by administrators’ attempts to controlits content because a school could never unconstitutionally “censor” itself.Hazelwood, however, requires school administrators to show that their actions are “reasonably related to legitimate pedagogical concerns.”[20] By invoking the First Amendment, the Court in Hazelwood implicitly rejects the argument that student journalists act as agents of their schools.[21]
Most pointedly, a federal district court in New York rejected a schoolprincipal’s claim that FERPA required him to confiscate copies of the schoolpaper because it contained “confidential” information about students. Thecourt in Frasca v. Andrews agreed that the paper contained informationthat would otherwise fall within the scope of FERPA.[22]The Court refused, however, to extend FERPA to the student media, stating”the prohibitions of the amendment cannot be deemed to extend to informationwhich is derived from a source independent of school records.”[23]
FERPA and the Department of Education
The Department of Education is responsible for investigating FERPAclaims, enforcing the Act when a violation occurs and issuing regulationsregarding its enforcement.[24] While the Department’s officialregulations do not explicitly address the application of FERPA to the studentmedia, the Department has said that it does not consider the student mediasubject to the Act.
For example, in at least one instance, the Department refused to enforceFERPA against the student media. In response to a filed complaint, theDirector of the Family Policy Compliance Office rejected the contentionthat the editor of a campus newspaper violated FERPA by disclosing informationcontained in a police report. “FERPA was not intended to apply to campusnewspapers or records maintained by campus newspapers. Rather, FERPA appliesto ‘education records’ maintained by an educational agency or institution,or by a person acting for such agency or institution.”[25]
The National Center for Education Statistics, an arm of the Departmentof Education, also released a summary of FERPA that appears to place thestudent media beyond the Act’s reach. The Center explains that “FERPA appliesto public schools and state or local education agencies.”[26]In defining the “agencies” subject to the Act, the Center explains thatthese “generally include public elementary and secondary schools, schooldistricts, intermediate education agencies, and state education agenciesor their representatives.”[27] The Center gives no indicationthat FERPA is applicable to the student media. Most importantly, it should be noted that the Department of Education has never enforced a FERPA claim against the student media. After more than 25 years of investigating and enforcing FERPA complaints, there is no evidence that the Department has ever so much as considered subjecting the student media to FERPA — which makes school administrators’ recent attempts to subject the student media to the Act all the more puzzling.
FERPA and the First Amendment
Perhaps the simplest explanation for the Department of Education’srefusal to enforce FERPA against the student media is that such a policywould be unconstitutional.
In the Frasca case, discussed above, the court stated flatlythat “Congress could not have constitutionally prohibited comment on, ordiscussion of, facts about a student which were learned independently ofhis school records.”[28] This is consistent with a numberof Supreme Court decisions holding that the government may not restrictthe press from reporting independently gathered information where suchinformation is newsworthy and accurate. In Oklahoma Publishing Co v.District Court,[29] the Supreme Court struck down adistrict court rule that prohibited the news media from publishing, broadcastingor disseminating the name or picture of a juvenile defendant. Similarly,in Smith v. Daily Mail Publishing Co.,[30] the Courtstruck down a state statute that made it a crime for a newspaper to publish,without prior approval, the name of any youth charged as a juvenile offender.The Smith Court rejected the state’s argument — an argument nowbeing echoed by school officials — that its interest in protecting theidentity of juveniles was significant enough to override First Amendmentconcerns.[31]
In some cases, school officials have claimed that the Supreme Court’sdecision in Hazelwood gives them the authority to use FERPA againsttheir student media. While Hazelwood does give school officialsgreater leeway when it comes to regulating some student media, such authorityis separate from that conveyed by FERPA — and certainly not unlimited.First, Hazelwood does not apply to all student media. For example,college media are not covered.[32] Nor are high schoolpublications that have — by policy or practice — established themselvesas public forums.[33] Second, even where Hazelwooddoes apply, it is difficult to imagine a court upholding a blanket policythat prohibits the publication of lawfully obtained student names or photosin its student media without regard to context. Hazelwood lowersthe First Amendment protections against administrative censorship; it doesnot eliminate them.[34]
The only context in which material published in a student publicationmight implicate FERPA is where school officials admit that they, not students,are determining the content of the publication. Such an admission would,of course, raise serious First Amendment questions. But as long as thecontent choices originate with students (which seems the very nature ofa “student” publication), FERPA should not come into play.
Although many school administrators have chosen to apply FERPA onlyto online student media, the foregoing analysis still applies. The SupremeCourt has made no distinction between the First Amendment rights of printmedia and those of online media. In Reno v. American Civil LibertiesUnion, the Court explicitly rejected the argument that online mediawere entitled to a lesser level of First Amendment protection.[35]
Conclusion
In its lifetime, FERPA has served some noble purposes. By requiringthat students and parents have access to their own education records, theAct encourages a healthy sort of disclosure. By penalizing schools andgovernment agencies that randomly release academic information to thirdparties, the Act legitimately protects the privacy of students.
Unfortunately, recent attempts by some school officials to use FERPAto prohibit the publication of lawfully obtained, accurate and newsworthyinformation by student media stretch the bounds of the law, not to mentioncommon sense. For more than a quarter of a century, student media, likeall news organizations, have sought to report complete and accurate newsabout their school communities and the issues that affect them. Such reportingnecessarily has included the regular and careful use of student names andphotos. At no point has there ever been any credible claim that such reportingwas prohibited by federal law. Such an application is not supported bythe text of the law or by the Department of Education’s enforcement. Sucha reading is almost certainly unconstitutional.
The recent use of FERPA against student media by creative, but misinformed,school administrators appeared literally out of the blue. One can onlyhope that it will soon disappear the same way. The student media’s vitalityshould not be sapped by an unreasonable interpretation of an otherwisecommendable law.
Notes:
1 20 U.S.C. §1232g.
2 FERPA was enacted as a replacement for §438of the General Educational Provisions Act. FERPA itself has since beenmodified six times, most recently in 1998 by the Higher Education Amendmentsof 1998. Department of Education, Legislative History of Major FERPAProvisions, available at http://www.ed.gov/offices/OM/fpco/Legislativehistory.html,(viewed March 2, 2001).
3 20 U.S.C. §1232g (a)(4)(A).
4 20 U.S.C. §1232g(a)(1)(A). As a “spending clause,”enacted under Art. I, §8 of the United States Constitution, FERPAworks to deny funding to any school or educational agency that violatesits terms. See Department of Education, Legislative History ofMajor FERPA Provisions, available at http://www.ed.gov/offices/OM/fpco/Legislativehistory.html,(viewed March 2, 2001).
5 Id.
6 20 U.S.C. §1232g(b)(1), (2).
7 20 U.S.C. §1232g(b)(1)(A), (B), (C), (D), (E),(F), (G), (H), (I), (J). The Act also exempts authorized representativesof the Comptroller General of the United States, the Secretary of Education,state educational authorities, organizations conducting educational studies,accrediting organizations, and persons connected to a student’s applicationfor financial aid.
8 34 CFR §99.3 (2000).
9 20 U.S.C. §1232g(a)(5)(A).
10 20 U.S.C. §1232g(a)(5)(B).
11 National Center for Education Statistics, Protectingthe Privacy of Student Records, Section 2, available at http://nces.ed.gov/pubs97/p97527/SEC2_TXT.htm,(viewed March 16, 2001).
12 See National Center for Education Statistics, Protectingthe Privacy of Student Records, available at http://nces.ed.gov/pubs97/97859.html,(viewed March 2, 2001).
13 Letter from Dr. David Anthony, Office of the Superintendent,McKinney Independent School District (October 2000).
14 Id.
15 20 U.S.C. §1232g(a)(3). Courts have, however,construed this section of the Act narrowly. In Kneeland v. NCAA, 650F.Supp. 1076 (W.D. Tex. 1986), the Court rejected, without comment, theplaintiff’s argument that the National Collegiate Athletic Associationshould be considered an “educational agency or institution” under FERPA.See also Arkansas Gazette Co v. Southern State College, et al.,620 S.W.2d 258 (Ark. 1981).
16 See, e.g., Yeo v. Lexington, 131 F.3d 241(1st Cir. 1997)(en banc), cert. denied, 524 U.S. 904 (1998); Leeds v.Meltz, 898 F. Supp. 146 (E.D.N.Y. 1995); Sinn v. Daily Nebraskan,829 F.2d 662 (8th Cir. 1987); Mississippi Gay Alliance v. Goudelock,536 F.2d 1073 (5th Cir. 1976).
17 Yeo, 131 F.3d at 253.
18 See Hazelwood School District v. Kuhlmeier,484 U.S. 260 (1988).
19 Id. at 271.
20 Id. at 273.
21 See also, Yeo, 131 F.3d at 250, n. 8: “Hazelwooddid not create a new state action analysis that any school-sponsored activitywhich bears an imprimatur of the school thus constitutes state action.”
22 See Frasca v. Andrews, 463 F. Supp. 1043,1050 (E.D.N.Y. 1979).
23 Id. The Court held, however, that the printedmaterial was likely to cause a “substantial disruption,” and so rejectedplaintiffs’ claim for a preliminary injunction to prevent the principalfrom barring distribution of the issue.
24 20 U.S.C. §1232g(f).
25 Letter from LeRoy S. Rooker, Director, Family PolicyCompliance Office (Sept. 20, 1993).
26 National Center for Education Statistics, supranote 10.
27 National Center for Education Statistics, supranote 9.
28 Frasca, supra note 18, at 1050.
29 See Oklahoma Publishing Co v. District Courtin and for Oklahoma County, Oklahoma, 430 U.S. 308 (1977).
30 See Smith v. Daily Mail Publishing Co..443 U.S. 97 (1979).
31 Id. at 104.
32 See, e.g., Kincaid v. Gibson, 236 F.3d 342(6th Cir. 2001)(en banc).
33 Hazelwood, 484 U.S. at 267.
34 See, e.g., Desilets v. Clearview Regional Bd.of Educ., 647 A.2d 150 (N.J. 1994).
35 Reno v. American Civil Liberties Union,521 U.S. 844, 869 (1997).