CONTACT:Frank D.LoMonte, Esq.ExecutiveDirectorStudent Press LawCenter(703)807-1904director@splc.org
ARLINGTON, Va. — The Student Press LawCenter (“SPLC”), the nation’s leading advocate for the legal rights of collegeand high-school journalists to gather and publish news, is cautioning that keyprovisions in proposed federal education privacy rules will result in denyingthe press and public access to important information necessary to keep schoolsaccountable.
If adopted as proposed, draft rules pending before theU.S. Department of Education (“Department”) would require public schools andcolleges nationwide to reject lawful requests for even anonymous, numericalinformation that includes no student identities, such as the number and natureof penalties the school has imposed for plagiarism.
SPLC filed written comments May 8 urging the Departmentto reconsider the proposed rules, which purport to clarify schools’ privacyobligations under the Federal Educational Rights and Privacy Act (“FERPA”), alsoknown as the Buckley Amendment. FERPA requires schools and colleges that receivefederal funding to refrain from releasing individual students’ educationalrecords to the public, often conflicting with state open records laws that wouldotherwise make school documents publicly accessible.
Although FERPA requires that schools withhold onlyrecords that contain educational information about named individuals, theDepartment is proposing to expand the reach of FERPA by also requiring thatschools deny requests for information if it is believed that the requestor hasparticular individuals in mind — even if the records do not disclose anyprivate identifying information.
Frank D. LoMonte, an attorney and executive director ofthe Student Press Law Center, said: “The Department’s proposal would requireschool employees to ‘read the minds’ of people requesting public documents, withthe illogical result that the very same piece of paper will be an open record toone requestor and a confidential educational record to the next requestor, basedon the subjective judgment of a school employee. This unmanageable patchworkrule will lead to needless delays and disputes, and will do nothing to protectany student’s legitimate privacy interests.”
According to the Department’s own description of howthe proposed rule would work, schools will be able to invoke FERPA to denyrequests even for anonymous statistical information — such as ademographic breakdown of the school’s graduating class, or the manner in whichcheating cases were punished — if the numbers are small enough that theschool believes the requestor knows the identity of the unnamed students to whomthe records apply.
“If the record is itself not individually identifyingor confidential, it does not matter under the law what the requesting party isable to do with that record and his own knowledge,” the SPLC said in commentsfiled with the DOE. “That the requestor is able to use independently gatheredknowledge to add significance to a generic document is simply good journalism;it is not (and should not be made into) a privacy violation on the partof the school.”
SPLC also urged the Department to reconsider otherelements of the proposed regulations, which would: (1) extend FERPAconfidentiality obligations to cover third parties that contract with schoolsand colleges, and (2) define as confidential “education records” documents thatare created even after a student is no longer enrolled, such as agreements tosettle disputes arising out of events that took place during enrollment.
“FERPA already is generating too many ‘false positives’that result in the wrongful denial of legitimate, newsworthy informationrequests,” SPLC said in its comments. “Because FERPA overrides states’ policydecisions to open their government records, the Department’s rules should makeclear that FERPA is to be narrowly construed and that any close judgment callsmust be resolved in favor of openness.”
Since 1974, the Student Press Law Center has beendevoted to educating high school and college journalists about the rights andresponsibilities embodied in the First Amendment, and supporting the studentnews media in covering important issues free from censorship. The Centerprovides free information and educational materials for student journalists andtheir teachers on a wide variety of legal topics.