FSU-NCAA case is a touchdown for transparency, a fumble for FERPA fundamentalists

It’s becoming increasingly difficult for colleges to argue with a straight face that the federal student privacy law prevents them from honoring their duty to disclose newsworthy public records they’d prefer to keep hidden.

The Florida Supreme Court’s decision Monday to decline review of a lower-court ruling — which declared that NCAA documents shared with, and used by, Florida State University are subject to disclosure under Florida’s open-records law — reaffirms that government documents may not be withheld from public view just because the documents incidentally mention college students.

The dispute involved a request by the Associated Press and other news organizations for documents relating to allegations that several Florida State employees afforded preferential academic treatment to student-athletes. The NCAA penalized FSU for the infraction, and the college appealed. The news organizations wanted a transcript of the NCAA appeal hearing and the report issued following that hearing. Both FSU and the NCAA claimed (among other arguments) that student confidentiality precluded the release of the documents. But the news organizations fought that interpretation in court and prevailed.

With the state Supreme Court taking a pass on the case, the well-reasoned opinion of the First District Court of Appeals becomes the final word. And that word resoundingly rejects the nonsensically literalist interpretation of the Family Educational Rights and Privacy Act (FERPA) that schools, colleges and the U.S. Department of Education have been espousing for years.

FERPA requires that schools and colleges maintain a policy of safeguarding the confidentiality of students’ education records. In the view of the DOE and of too many hidebound schools and colleges, “education records” means anything even indirectly referring to anyone enrolled in school — even (in the view of a few particularly obstructionist institutions) parking tickets, which are “educational” only in the way that sticking your finger into an electrical socket is educational.

Court after court after court has adopted a narrow, common-sense reading of “education records” that distinguishes between the records everyone understands Congress intended to protect — students’ grades, attendance records, standardized test scores — and those that only tangentially impact on a person’s status as a student. And yet colleges persist in defining any piece of paper in their possession as an “educational record” when nondisclosure suits their purposes — the way Wyoming’s Laramie County Community College tried to do, before a state court judge came to his senses Tuesday and rejected the College’s bogus attempt to apply FERPA to a report embarrassing to the College’s president.

The appeals-court ruling in NCAA v. Associated Press is a superb analysis of FERPA that should be read by every university attorney who is considering advising his clients to throw the FERPA secrecy cloak over everything. The cloak, it turns out, is more like a shriveled fig leaf.

First, the ruling discusses the elaborately indirect mechanism that the NCAA has devised for sharing information with its member institutions. Knowing that it might trigger state open-records laws to actually provide a tangible copy of a document to a state agency like FSU, the NCAA has instead set up a cyber-worksite at which documents may be reviewed without ever physically entering the “custody” of the college. That’s a cute idea, but the court was not buying it: “The appeal by the University is a matter of public concern.  It is not transformed into a private matter merely because the documents the University lawyers used to prepare the appeal reside on a computer owned by a private organization.”

The court then turned to — and made very short work of — the FERPA argument.

At the outset, the court made a key observation about the nature of FERPA. Despite the shorthand way that it often is oversimplified, FERPA does not instruct schools to reject open-records requests: “By its terms, FERPA does not prohibit the disclosure of any educational records. Instead, it operates to deprive an educational institution of its eligibility for federal funding if its policies or practices run afoul of the rights of access and privacy protected by the law.”

The court readily determined that the records of a hearing about academic dishonesty by university employees could not be classified as “education records” because FERPA — by its own terms — applies only to documents “directly related” to students. These documents weren’t: “[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.”

With the Florida Supreme Court’s decision to leave undisturbed this pro-disclosure ruling, and the Wyoming trial court’s decision to vacate an ill-considered injunction preventing two newspapers from publishing a leaked document from Laramie County Community College, it has been a rousingly good week for common sense. And a bad week for the forces of secrecy, whose cries of “FERPA” are starting to sound a lot like, “Wolf