New Texas secrecy law risks criminalizing reporting about trade schools

A law recently signed by Texas Gov. Rick Perry, a could-be presidential candidate, risks handcuffing journalists in their coverage of proprietary, non-degree-granting colleges — assuming it isn’t thrown out as unconstitutional.

House Bill 2538, sponsored by state Rep. Hubert Vo, was advertised as a way to give students at private trade schools the same privacy protection that those attending publicly aided, degree-granting schools enjoy under federal law.

The Texas Workforce Commission, which regulates non-degree-granting trade schools, supported the legislation as a patch to what the Commission perceived as a gap in the federal Family Educational Rights and Privacy Act (FERPA). FERPA requires that schools receiving federal aid through the U.S. Department of Education enact and enforce policies to keep education records confidential.

Since the only penalty for violating FERPA is the potential loss of DOE funding, schools that don’t accept federal education funding aren’t covered.

While it sounds like a sensible idea to apply privacy rules consistently to all students’ records, that isn’t what the law does.

FERPA penalizes only the educational institution that fails to effectively enforce confidentiality, and the only sanction is financial. House Bill 2538 does much more — it makes it a criminal offense if a person “solicits, discloses, receives or uses, or authorizes, permits, participates in, or acquiesces in another person’s use of” student information. “Student information” includes not just sensitive educational data like grades, but the student’s name, address, phone number or email address.

In other words, House Bill 2538 purports to penalize not just the leaker but also the leak-ee (if that’s a word). Thus, a reporter who uses the Texas Public Information Act to request reports of complaints against the local cosmetology school is guilty of a misdemeanor — “receiving” and “using” student information — if the Commission turns over a document that includes a student’s name (as is the Commission employee who made the disclosure).

Private trade schools are attracting increasing media scrutiny because of concerns that some schools charge tuition that is disproportionately high to what a graduate could reasonably borrow and repay in a modestly salaried occupation — particularly when jobs are so scarce, and jobless people are incurring substantial debt to acquire new credentials and increase their chances of getting hired. The activities of these schools is a legitimate subject of news coverage, as is the Commission’s effectiveness in regulating them.

Ominously, House Bill 2538 incorporates the definition of a protected “education record” from the federal DOE’s FERPA regulations. But, as frustrated journalists regularly are reminded when they seek public records from schools and colleges, those regulations have proven to be vague, confusing and prone to abuse. Records that are not confidential at all, and have nothing to do with “education,” regularly get classified as FERPA-protected. If that definition is applied with the same imprecision in the realm of Texas trade schools, then prosecutors could be citing people for nonexistent transgressions of incomprehensible standards.

The prospect of being prosecuted for doing nothing more than receiving a document could certainly intimidate a journalist interested in writing about career schools, particularly since the new  law does not require any proof of intentional wrongdoing in acquiring the information.

It could, theoretically, be a crime for a reporter to open an envelope full of Texas Workforce Commission documents that is slid under her door. And since it is equally criminal to permit, participate in, or acquiesce in a person’s use of student information, then theoretically every editor who lays a finger on the news story could be prosecuted as well.

“Theoretically,” however, is the operative word. It almost certainly would be unconstitutional to apply criminal sanctions against a journalist for receiving a leaked Commission record.

In 2001, the Supreme Court decided in Bartnicki v. Vopper that the government could not penalize, either criminally or civilly, a broadcaster’s disclosure of the contents of a cellphone conversation that a third party recorded unlawfully. So long as the media organization did not itself participate in the illegal interception of the information, and the information touches on a matter of public concern, then its publication is protected by the First Amendment, the Court ruled.

House Bill 2538 gives the Workforce Commission the power to enact rules carrying out the new prohibition. It would take quite a feat of draftsmanship to come up with rules salvaging the statute’s constitutionality. The rules would have to add the substantial gloss that “users” or “receivers” of records can be penalized only if they obtain the information by way of some other crime (e.g., burglarizing the Commission’s office). And in case this needs pointing out, burglary already is illegal.

The governor signed the bill into law June 17. In his defense, the measure went entirely unnoticed by news media, undoubtedly because the description seemed so harmless. The law takes effect Sept. 1, barring a legal challenge.