Privacy law strikes at heart of newspapers

When Patrick Esfeller, a junior at Louisiana State University, learned he was under investigation from school administrators, he says his feelings quickly moved from shock to outrage.

He claims the investigation, which was based on charges that he had been harassing an ex-girlfriend, was unfairly targeting him, and he decided to fight it. He wanted to prepare his defense by finding out exactly what evidence the university, had. So he sought the help of the campus’s authority for procuring documents: the student newspaper.

After signing a waiver allowing the newspaper to access his information, Esfeller and The Daily Reveille submitted a request for the records to the university. Administrators subsequently turned down the request, saying that according to federal privacy laws, the university cannot release information about student disciplinary procedures.

Such a response is not uncommon for student journalists, who for decades have been barred from accessing certain school records in the name of students’ rights to privacy. Since it was passed in 1976, the Family Educational Rights and Privacy Act has prevented publicly funded schools from disclosing personal information about students, such as their grades and disciplinary history, without consent.

But recently, some administrators at the college and high school levels have taken FERPA a step further. Some are claiming that, in order to protect student privacy, they have the right to actively prevent the dissemination of information.

At two schools this semester, administrators cracked down after students gave the campus newspaper information that school officials believed was covered by FERPA. In these two situations a law originally intended to protect students was being interpreted a way that silenced their speech.

After Esfeller and the newspaper filed the records request, an administrator sent Esfeller an e-mail saying that publicizing information about the case could be seen as an attempt to “intimidate, harass or unduly influence” those affiliated with the proceedings – an infraction that could lead to additional charges.

Among the information Esfeller passed along to the newspaper was the name of the ex-girlfriend, who lodged the complaint against him.

Esfeller responded to the administrator’s e-mail with indignation and contacted the American Civil Liberties Union.

Although administrators at the university could not comment on Esfeller’s allegation or the investigation because of federal privacy laws, Dean of Students K.C. White acknowledged the precarious balancing act between students’ freedom of expression and the right to privacy, but defended the university’s stance. While one student might be willing to impart his or her records, the disclosure could infringe another’s privacy, she said.

The Daily Reveille printed the name of Esfeller’s ex-girlfriend in a story detailing his quest for information.

“As an institution, we have to balance the right of all of our students,” White said. “When you’ve got competing interests, where is the public’s right to know versus the victim’s privacy?”

Although administrators did not stand in the way of the information being published in the newspaper, White’s position could harm the newspaper’s mission, said Daily Reveille Editor in Chief Jeff Jeffrey.

“We fear it could create a chilling effect on campus where students are afraid to talk to the newspaper,” Jeffrey said. “Getting called to the dean of student’s office is like getting called to the principal’s office.”

In January, after a resident assistant broke up a campus party junior Staci Borel was attending, she wrote The Daily Reveille to complain about what she believed to be an abuse of power.

A week later, Borel was called to the dean’s office where the conversation focused primarily on the letter, she said.

Like Esfeller, Borel was told that airing details of her story, specifically the name of the resident assistant, could be perceived as interfering with a judicial affairs investigation and could result in disciplinary action. The senior, months away from graduation, found the warning particularly disturbing.

“I was scared, I didn’t know what was going to happen,” Borel said. “I’m in a lot of organizations that are based in your academic standing with the university.”

Borel expressed concern that the threat she received was not a reaction to the information she released but rather an attempt to silence her criticism of the administration.

Although Jeffrey said the university’s actions might be based on the legitimate interest of preserving investigative integrity, it appears suspicious.

“What they’re actually doing and how it looks may actually be different, but I think it looks pretty authoritative,” he said. “That over-vigilance is becoming a problem.”

While The Daily Reveille’s content was never in jeopardy when administrators acted to protect student privacy, such an effort could lead to indirect censorship.

When the student newspaper at Campolindo High School, La Puma, similarly tried to report the story of a student who felt slighted by school disciplinary procedures, they saw the article initially barred from publication.

Earlier this year, the newspaper attempted to report the story of a student who claimed administrators infringed his rights when they confiscated his cell phone in class. Not only was the phone taken, the student told La Puma, but an administrators searched the voicemail and text messages and, based on their content, searched his locker and book bag.

Believing the school conducted an unconstitutional search, the student reported his experience to the newspaper. La Puma attempted to print a story about it, but it ran into trouble when administrators could not corroborate it, said Elan Lubliner, a member of the newspaper staff.

Administrators would not confirm or refute the story because they did not want to violate federal privacy laws, they said. The newspaper decided to report the story nonetheless, as an opportunity to address students’ rights on campus, Lubliner said.

Ultimately, the principal censored the story because it violated the student’s privacy rights, said Jim Negri, superintendent of the school district that includes Campolindo High School.

The U.S. Department of Education, which oversees FERPA enforcement, has said that it does not consider the student media subject to the act – meaning FERPA does not bar newspapers from releasing information.

Despite that, Negri said he believes the school has the authority to regulate what information the newspaper releases because the paper is produced in a class.

“Under a class all schools have control over factual information and student privacy rights,” Negri said. “As a class, it’s not an independent newspaper.”

The Contra Costa Times,, an area newspaper, which Lubliner also works for, ran the article without the student’s name in its opinion section, along with an introduction written by Lubliner and another student.

After the article ran in the Contra Costa Times administrators decided to allow the article to run, Lubliner said.

Dan Bledsoe, associate principal at Campolindo High School, refused to comment, except to say that he fails to see how the incident is noteworthy because the article was eventually published.

Fighting the censorship

While students at Campolindo High School were able to get around the administrative censorship, students at Louisiana State University had fewer options.

The ACLU of Louisiana expressed interest in Esfeller’s case, but a spokesman told him they would not take the case unless the administration took some punitive action.

Although the Education Department oversees the implementation of FERPA, a spokesman said it would not become involved, even if it is found that administrators wrongfully interpreted the act in order to censor student expression.

“We’re talking about disclosure of information that comes not from an education record but is disclosed by a student,” said Jim Bradshaw, an Education Department spokesman. “We would only take notice if it were a school official that was releasing the information improperly.”

Students would not find any more help in legal precedents for autobiographical speech – the conflict over which still is in its infancy – said Sonja West, an assistant professor of law at the University of Georgia.

In an article scheduled to be published this spring in the Washington University Law Review, West calls for increased constitutional protection for autobiographical speech.

“Courts and commentators have paid basically no attention to the constitutional protection of autobiographical speech,” she wrote. “The right to tell your own life story has received only passing reference in a handful of lower court decisions.”