College disciplinary records are where the rubber meets the road for student privacy law. They are the confidential records that journalists most want — and that colleges most want to withhold.
While journalists have very little need for grades, attendance sheets and other academic records, they often are legitimately interested in how campus judicial bodies do (or don’t) mete out punishment for disciplinary infractions. This is especially true now that disciplinary bodies are being asked to handle offenses that, if processed in the real-world justice system, would be punishable as felonies.
The courts generally have found that student disciplinary files are confidential under the federal Family Educational Rights and Privacy Act (“FERPA”), so colleges may be entitled to withhold them if faced with a public records request.
But colleges should not be allowed to invoke FERPA to withhold data and statistics, since FERPA applies only to individually identifiable student records. It is still possible for student journalists — at least at public colleges, which are subject to open-records laws — to report on trends in the use of campus discipline, even if they cannot obtain the details of individual disciplinary rulings.
The University of Georgia’s Red and Black, which is noted for aggressive watchdog reporting using public-records laws, recently obtained statistics showing that UGA has mailed notices of disciplinary infractions to the families of nearly 2,000 students over the last five years. Although students over the age of 18 may believe that FERPA forbids unconsented disclosures even to their parents, Congress created a limited exception for parental notifications that permits disclosure of alcohol or drug violations to the parents of students under 21.
Journalists covering the campus disciplinary system understandably find it frustrating that so many inquiries are met with, “Can’t tell you that.” But there is value in asking the questions and in enlightening the public about the workings of the system, and where it may be failing the accusers, the accused, or the larger campus community.