FERPA abuse reaches new extremes with unconstitutional restraint against Wyoming newspaper

Despite eighty years of contrary U.S. Supreme Court precedent, a Wyoming judge has restrained a newspaper from publishing lawfully obtained information about a local college — on the grounds of the college’s bogus claim of “student privacy.”

The Wyoming Tribune Eagle reports that Laramie County District Judge Peter G. Arnold issued a 10-day temporary restraining order directing the Tribune Eagle not to publish details of an internal investigation into the conduct of Laramie County Community College President Darrel Hammon. The report addresses Hammon’s conduct while chaperoning a 2008 student trip to Costa Rica.

The newspaper tried requesting a copy of the report directly from the college under Wyoming’s Public Records Act. The college refused, citing the Family Educational Rights and Privacy Act. FERPA requires colleges to keep student educational records confidential, but the statute often is wrongfully invoked by schools and colleges seeking to conceal embarrassing information that has nothing to do with student privacy.

Despite the obstruction, the paper ultimately obtained, and intended to publish, a leaked copy of the document, until the college’s lawyers persuaded Judge Arnold to take the bizarre and extreme step of stopping the presses by court order.

The college’s argument — that the U.S. Department of Education would punish the college for not stopping the document from falling into the newspaper’s hands — is frivolous on multiple grounds. FERPA penalizes only the disclosure of confidential information by the school — not by an unrelated third party such as a newspaper. (The law is quite clear that journalists may freely publish documents leaked by confidential sources, even if the leaker may himself be in trouble for violating his employer’s rules, or even breaking the law.)

Moreover, a state court in Florida just recently addressed and rejected a comparable FERPA argument in a dispute over access to Florida State University’s correspondence with the NCAA. In that case, NCAA v. The Associated Press, Florida’s First District Court of Appeal ruled in October 2009 that a public university must disclose records of its internal investigation into alleged preferential treatment of student-athletes. The court rejected the NCAA and Florida State’s claim that such investigative reports qualified under FERPA as “student educational records.”

“By the language of this statute, a record qualifies as an education record only if it ‘directly’ relates to a student. … [T]hese records pertain to allegations of misconduct by the University Athletic Department, and only tangentially relate to the students who benefitted from that misconduct,” the court held. The Florida ruling is consistent with the limited, common-sense way in which courts have always interpreted FERPA; none has ever taken the ultra-literal interpretation that Laramie County Community College is attempting to peddle.

Injunctions against publishing news are almost unheard-of in America — for good reason. The Supreme Court has said, time and time again, that restraining the distribution of news is the most disfavored of infringements on the First Amendment, tolerated only where the publication would imminently threaten national security.

As the Court said in its landmark 1931 ruling in Near v. Minnesota: “Public officers, whose character and conduct remain open to debate and free discussion in the press, find their remedies for false accusations in actions under libel laws providing for redress and punishment, and not in proceedings to restrain the publication of newspapers and periodicals.” And in the well-known “Pentagon Papers” case — in which the government attempted to prevent The New York Times and Washington Post from publishing leaked excerpts from a secret Pentagon history of the Vietnam war —  the Court made clear that a restraint on publishing cannot be justified even by claims that publication would compromise national secrets. As Justice Black wrote in one of several fragmented opinions in that case, New York Times Co. v. United States, “every moment’s continuance of the injunctions against these newspapers amounts to a flagrant, indefensible, and continuing violation of the First Amendment.”

Judge Arnold soon will recognize and correct this profound error. But the very fact that FERPA is capable of being misused in this most radical and dangerous manner should, finally, awaken Congress and the Department of Education that the statute is grievously flawed. No college attorney should be able to stand before a judge with a straight face and insist that the federal government will take away all of the school’s funding because of a newspaper story, and it is time that the federal government said so unequivocally.