In 1975, U.S. Sen. James Buckley told an assembly of parents their children’s education should not be left solely to the educators. He stressed the importance of holding schools accountable via better access to educational records for parents and expressed concern about keeping certain sensitive student information private. Those same principles motivated Buckley, a year earlier, to propose what became the Family Educational Rights and Privacy Act (FERPA).
More than 30 years later and months after the latest round of legal interpretations, open records advocates, elected officials and journalists are questioning FERPA’s application and wondering just how far from the law’s original intent schools are willing to go to shield information from the public.
FERPA, also known as the Buckley Amendment, applies to any K-12 schools or colleges that receive federal funding whether they are public or private. The law prohibits them from releasing confidential “education records” including grades, health reports and test scores, for example, to anyone other than the student, or the student’s parents if he or she is under 18.
If a school violates FERPA, it runs the risk of losing its federal funding. To date, that has never happened.
FERPA does not prevent schools from releasing “directory information” such as names, phone numbers and addresses to outside sources like reporters or researchers who may share the information with the public. FERPA does not, however, force a school to release such information.
The Department of Education, which monitors the use of the law and deals with violations, defines “directory information” as information that is “generally not considered harmful or an invasion of privacy if released.” The department has left it up to schools to decide what does, or does not, fall into that category.
The law has become a roadblock for student and professional journalists covering education, and its vague definitions and broad — sometimes conflicting — interpretations have led schools to apply the law in ways its sponsor never intended.
At the center of the matter is the ambiguous term “education record” and what is does or does not refer to.
The language in FERPA does not offer much in the way of a definitive answer. The statute refers to an “education record” as “records, files, documents, and other materials which contain information directly related to a student; and are maintained by an educational agency or institution or by a person acting for such agency or institution.”
Buckley told the Columbus Dispatch in Ohio that schools have taken liberties with FERPA that he never imagined.
“The law needs to be revamped,” Buckley told the Dispatch. “Institutions are putting their own meaning into the law.”
The Dispatch helped gather support for the movement toward reform when it published the first of a two-part series called “Secrecy 101” in May about the misuse of FERPA primarily in university athletic programs.
Reporters sent records requests to more than 100 universities and compiled a database with different information schools shielded using the law. The report found widespread discrepancies between what a college considered a private education record and what was public.
Paul Gammill said the stories helped bring the issue to the Department of Education’s attention.
“Apparently there is some misunderstanding of what colleges can and can’t do,” Gammill said. He also said the law was never meant to be a shield for institutions.
Gammill is the director of the education department’s Family Policy Compliance Office in charge of monitoring the law’s use. He said the department is listening to concerns and is currently working on putting together “guidance policies” to help put schools on the same page.
Experts for and against redefining the law agree that sensitive information such as Social Security numbers and academic records should be kept private; however, access to anything else remains up for debate.
Some schools cite FERPA to protect records strictly relating to a student’s coursework and performance, while others have taken a more conservative approach to privacy and will keep the public from getting their hands on anything with a student name on it, whether it is academic or not.
There are schools that advise staff to consider all records of students maintained by the university, regardless of their academic relevance, protected under the law. At the University of Massachusetts at Amherst, the FERPA tutorial guide for staff states that “any record created during a student’s tenure at the University is considered a student’s education record and is FERPA-protected.” And while it may not be what Buckley intended, the university’s view is not clearly beyond the FERPA statute’s broad definition of “education record.”
Student Press Law Center Executive Director Frank LoMonte said the law’s vague wording is its “fundamental flaw” and that schools should be using common sense in considering a record’s release. He said that while some schools may choose protection of public records over their disclosure in the faith that the law will uphold such an application of FERPA, courts have overruled them.
“Every piece of paper with a student’s name on it is not an education record,” LoMonte said. “If the courts have no problem applying common sense, the agencies should have no problem either.”
In a case reported by the Dispatch, the University of New Mexico did not consider flight manifests or complimentary tickets for student athletes to be “education records” and would release them if requested. However, Texas Tech University would only release the manifest and refused to release lists of complimentary tickets. Gammill said the education department is in the process of determining whether such documents can be considered “education records.”
Government officials have sent letters to the department to urge it to reconsider FERPA’s language and to clear it up.
U.S. Sen. Sherrod Brown, D-Ohio, wrote to the department encouraging more precise definitions.
“I am asking that the Department take additional steps to clarify for students, parents, colleges, universities, and the public what is an educational record that is protected under FERPA and what information can be disclosed under what circumstances,” Brown wrote in a letter dated June 15.
Ohio Attorney General Richard Cordray also asked the department to take another look at the ambiguities in the law.
“…[T]he law has been interpreted and reinterpreted in ways that stray far from its original purposes, and it has been construed throughout the country in different ways by different courts and educational institutions,” Cordray wrote in a letter to the department on June 25.
Clifford Ramirez, who has helped teach school officials about FERPA for 10 years, said the law is clear enough and institutions should be able to define for themselves what is or is not an “education record.” Ramirez is the author of several books on FERPA, most recently FERPA Clear and Simple: The College Professional’s Guide to Compliance.
“The education institution is responsible for defining education records specifically for its community,” Ramirez said. “Some institutions will be very restrictive and not give out any information whatsoever about their students. Others will take a more community-based approach.”
That approach can differ within an institution and illustrates how widely the law is interpreted. For example, the University of Illinois at Chicago considers photos of students to be directory information and will publish or otherwise release them unless a student specifies otherwise in writing. The university’s flagship campus at Urbana-Champaign however, does not.
Carol Malmgren, registrar on the Urbana-Champaign campus, acknowledged the discrepancy and said the different campuses decide for themselves what they want to disclose.
“We have got to set the environment that is best for our campus,” Malmgreen said.
Gammill agrees and said the Education Department does not try to attach too strict a formula for determining what constitutes directory information because schools know what is best for their students.
“Our university has taken a more conservative approach to maintain a trust relationship with our students,” Malmgren said. “We do real well by FERPA on this campus … being good stewards of student records.”
LoMonte said he would like to see Congress redefine the law to more accurately protect only academic records as opposed to simply any record maintained by the school.
“We’re only talking about records in which a student is acting in an academic capacity,” said LoMonte.
Getting documents from schools has become increasingly restrictive for members of the media and with the Department’s latest rules changes giving schools more leeway to deny requests, it has only grown more difficult.
The Department’s FERPA rules were amended in January to address concerns over what constitutes personably identifiable information, among other items. Giving greater access to journalists, or the public for that matter, was not on the agenda.
One amendment in particular made accessing records, especially those disciplinary in nature, more difficult for reporters and the public. Schools can now withhold already-redacted information if school officials determine the requester already knows the identity of the student to whom the record relates. School officials can also withhold the information if they believe that people with inside knowledge within the school could figure out the anonymous student’s identity.
The Society of Professional Journalists, a media professionals advocacy group, voiced its objection to the new rules in a letter to Congress. The Indianapolis-based organization was prompted by its Freedom of Information Committee to respond to the threats against access for reporters.
Dave Cuillier, the committee’s chair, said the new regulation gives schools too much discretionary power.
“I think that’s a dangerous idea,” Cuillier said. “Secrecy is being committed based on an agency’s ability to guess the purpose of the information.”
The amendment follows on the heels of court cases deciding how and when FERPA can be used to shield information about students.
In one of the more recent cases, the Montana Supreme Court ruled in 2007 that a community newspaper was entitled to documents relating to the disciplinary actions taken against two students at a high school.
In 2005, the editor for the Cut Bank Pioneer Press newspaper in Cut Bank, Mont., requested the redacted documents after the Cut Bank Public Schools Board of Trustees met in a closed session to determine actions to take against the students who had shot other students with plastic BBs on school property.
When the board refused to comply, citing privacy concerns, both the newspaper and the board filed petitions in district court to determine whether the documents could be disclosed.
The court wrote that FERPA does not prevent the public release of student disciplinary records with identifying information redacted and the newspaper had a legitimate reason for requesting the information.
The court referred to other similar cases in Ohio and Georgia where disciplinary records were determined not to be covered under FERPA.
LoMonte said while the decision was a victory for open records advocates, the precedent remains at the state level only and he fears the new rule will make it harder for journalists to get similar information.
In the meantime, LoMonte said universities will not get any more liberal with the information they choose to disclose until the threat of withdrawal of federal funding is addressed.
LoMonte describes the department’s authority to suspend federal money as the “financial death penalty” and said schools will continue to excessively classify records as confidential as long as the threat is there.
Cordray also took issue with the fact that schools may act out of their own self-interest rather than that of the student or the public.
“I am concerned that legitimate public information is shrouded in secrecy, in part because significant sections of the law are so vague that universities might decline to disclose records in order to protect themselves from lawsuits,” Cordray wrote in his letter to the Department of Education.
Cuillier said the loss of federal funding is a “huge incentive to keep things secret.” Considering the minor penalties for violating various state open records laws and the “harsh” punishment for failing to abide by FERPA, it makes sense schools would err on the side of caution, Cuillier said.
“If we don’t do something, it will definitely get worse,” Cuillier said.