House bill would permit students to sue schools for violating FERPA

WASHINGTON,D.C. –– Under a bill awaiting consideration in the U.S. House,students and parents could sue schools for disclosing student records withouttheir consent, potentially giving universities an even greater incentive torestrict media access to campus crime information.Rep. Robert E.Andrews, D-N.J., proposed the bill last April as an amendment to the FamilyEducational Rights and Privacy Act, a federal law that regulates the release ofstudent educational records to the public. The bill would permit students andparents to sue schools that receive federal aid for erroneously releasinginformation made private under FERPA if that disclosure provesharmful.HR 1848 would also permit lawsuits from college applicants whoseapplication information was disclosed as well as third parties who might beharmed by the release of a student’s records.Since FERPA went intoeffect in 1976, schools can be penalized with the loss of federal financial aidfunds if they have a “practice or policy” of disclosing student educationrecords without consent, although no university has ever been punished becauseof a FERPA violation, according to Department of Education officials.Thebill is a reaction to a U.S. Supreme Court case last year in which a formercollege student, Ru Paster, argued that he had the right to sue GonzagaUniversity under FERPA. Paster sued for violation of privacy when a Gonzagaadministrator released inaccurate information about him to a prospectiveemployer, which he said prevented him from getting work as a teacher inWashington state. The court sided with Gonzaga, ruling that FERPA does not allowindividuals to sue.Paster was awarded more than $700,000 in defamationdamages in a separate lawsuit under state law.Universities are opposingthe bill out of a fear that petty lawsuits would bog down schoolfinances.Daren Bakst, president and general counsel of the Council onLaw in Higher Education, said the bill is unnecessary.”State lawprotects students seeking damages, just as it did in the Gonzaga case,” Bakstsaid. “The bill will create a litigation nightmare for schools and a lot offrivolous lawsuits.”Controversy over FERPA has intensified this year asCongress prepares to reauthorize the Higher Education Act, the law thatregulates almost all financial aid for universities, and of which FERPA is apart. FERPA’s broad student privacy protection has frustrated manyjournalists seeking to expose student crime records to the public. Under FERPA,schools are allowed –– but not required –– to releasethe final results of student disciplinary hearings involving violent crimes andnonforcible sex offenses. Campus police and security department records are notcovered by FERPA.S. Daniel Carter, senior vice president of Security onCampus Inc., a nonprofit organization that advocates campus safety, said thebill will create a fear of lawsuits and make universities even more hesitant torelease campus crime information to the media and public. GregLukianoff, director of legal and public advocacy at the Foundation forIndividual Rights and Education, agreed that campus crime records should bemore accessible, but he said the bill would still improve FERPA.”HR 1848will keep universities honest in regards to FERPA,” Lukianoff said. “Currently,universities have too much arbitrary power to disclose confidentialrecords.”Lukianoff added that FERPA generally does more harm than goodand needs quite a few amendments.Rep. Andrews said he introduced thebill to create more ways to punish schools for violating student privacy. The bill is awaiting a hearing by the House Subcommittee on Courts, theInternet, and Intellectual Property.Another bill attempting to amendFERPA, the David Schick Honesty and Campus Justice Act, would require schools toreveal the final results of student disciplinary hearings to victims of violentcrimes and nonforcible sex offenses.Carter said the Schick proposal is astep in the right direction for campus safety and open records, but added itshould be broadened to require public disclosure of student disciplinary recordsinvolving violent crime and nonforcible sex offenses.

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