Contact: Frank D. LoMonteExecutive Director(703)807-1904director@splc.org
New education privacy regulations slipping into effect at the eleventh hourof the Bush administration will make it much more difficult for journalists andparents to investigate the performance of schools and colleges, according to theStudent Press Law Center, the nation’s leading authority on the legalrights of student journalists.
The U.S. Department of Education has just enacted significant changes tothe Family Educational Rights and Privacy Act (FERPA), also known as the BuckleyAmendment, a 1974 statute intended to penalize schools that fail to adopt andenforce policies to safeguard the confidentiality of student education records. The changes are set to take effect January 8, twelve days before the end of theBush administration.
The new rules would greatly expand the definition of what qualifies as aconfidential “education record” to include even records with allnames, Social Security numbers and other individually identifying informationblacked out (“redacted”). This change will frustrate the ability ofparents and journalists to use state open-records laws to obtain basicstatistical information about school safety, discipline, academic performanceand other essential matters, said attorney Frank D. LoMonte, executive directorof the Student Press Law Center.
“By its own admission, the DOE made no attempt to strike a balancebetween legitimate privacy interests and the public’s right to holdschools accountable. The DOE simply said that accountability doesn’tmatter and that its only concern is secrecy,” LoMonte said. “DOE’s interpretation flies in the face of every court ruling tointerpret FERPA, and it goes well beyond what Congress intended in enacting thelaw.”
The Student Press Law Center (SPLC) is a Washington, D.C.-area nonprofitwhose mission is to advocate for free-press rights for high school and collegejournalists nationwide. The Center provides legal information and referralassistance at no charge to students and the educators who work with them.
Historically, schools and colleges have been instructed under FERPA toredact the names, Social Security numbers and other identifying information fromstudent records before releasing them in compliance with an open-recordsrequest. But under the new DOE rule, schools and colleges are directed towithhold documents even if all identifying information is removed, if the schoolbelieves that the requester knows, or can figure out, the students to whom adocument pertains.
As an example of how it intends the rule to work, the DOE stated that therules will prevent a school even from confirming whether it had disciplined anystudent for bringing a gun onto campus, because the identity of the gun-wieldingstudent probably would be known to people within the school. “Thepublic has a right to know essential safety information such as what stepsadministrators take when they catch a student carrying a gun into a high school.There is no legitimate ‘privacy’ interest in committing a felony onschool grounds, and the Department’s insistence on protecting the’privacy’ of a would-be school shooter over the safety interests ofthe public shows just how arbitrary and irrational these rules are,”LoMonte said.
The DOE circulated a draft of its new FERPA rules on March 24. The SPLCjoined other open-government advocates in urging the Department to refrain fromexpanding the scope of FERPA, noting that FERPA already is being widely abusedto withhold non-confidential documents, including audit reports and jail logs,from public scrutiny. DOE refused to make any reforms to the draft rules, andreissued them in final form in the December 9, 2008, edition of the FederalRegister.
“DOE’s rules respond to a ‘problem’ that justisn’t there. Not a single person came forward with evidence that anystudent’s legitimate privacy interests have ever been compromised by anopen-records request for statistical information,” LoMonte said. “On the other hand, DOE is well aware that schools are routinelymisapplying FERPA to deny requests for documents that cannot rationally beconsidered private ‘education records.'” Just last month, theDOE itself issued a ruling that the University of Virginia had misapplied FERPAin requiring victims of sexual assaults to sign confidentiality agreements underwhich the victims agreed — under threat of discipline — that theycould not discuss the outcome of disciplinary proceedings against theirattackers with anyone, to protect the privacy of the rapists.
The SPLC and its volunteer attorneys successfully sued the Department ofEducation in 1991 on behalf of journalists at the University of Tennessee andColorado State University, to overturn the DOE’s irrational interpretationthat FERPA prevented colleges from releasing campus police reports to the media.In response, Congress amended FERPA to clarify that the DOE’sinterpretation was wrong and that police reports are public records.
The Dec. 9 Federal Register posting is viewable athttp://edocket.access.gpo.gov/2008/pdf/E8-28864.pdf.For moreinformation on the SPLC, go to www.splc.org.