SPLC urges “common sense” ruling in University of Illinois open-records dispute

FOR IMMEDIATE RELEASEContact: Frank D. LoMonte, executive director703.807.1904 / director@splc.org

The Student Press Law Center, a nonprofit advocaterepresenting the interests of the college and high school media nationwide,urged a federal appeals court Friday to uphold a lower court’s ruling grantingthe Chicago Tribune access to publicrecords about a secretive VIP admissions program that the University ofIllinois attempted to conceal on the grounds of “student confidentiality.”

The SPLC and its partner organization, the ReportersCommittee for Freedom of the Press, co-authored and filed a friend-of-the-court(“amicus”) brief today, joined by 21 media organizations and companies, amongthem the Society of Professional Journalists, the American Society of NewsEditors, ABC, NBC, The New York TimesCompany and The Associated Press.

The brief asks the 7th U.S. Circuit Court of Appeals,located in Chicago, to affirm a U.S. District Court’s March 7, 2011, rulingthat federal privacy law is no obstacle to the disclosure of public recordsrequested by the Tribune.

“For far too long, colleges and schools have been hidingbehind bogus claims of ‘student privacy’ to conceal embarrassing informationthat ought to be a matter of public record,” said attorney Frank D. LoMonte,executive director of the SPLC, who signed the brief along with attorneys LucyDalglish and Mark Caramanica of the Reporters Committee. “The courts have beenvirtually unanimous in telling schools that not every cocktail napkin with astudent’s name is a confidential ‘education record,’ and this should be doublytrue when disclosure is essential to get to the bottom of a scandal involvingthe abuse of public trust.”

The Tribunerequested records from UI as part of an ongoing investigative series, “CloutGoes to College,” documenting how politicians and large donors were able to getspecial consideration for otherwise-unqualified college applicants through UI’sgovernment affairs office, which ran a “shadow” admissions program separatefrom normal admissions channels. After the Tribunebrought the “clout” admissions program to light, the president of UI and mostof the university’s trustees stepped down.

The university denied the Tribune’s request for documents that include copies ofrecommendation letters that would identify which politicians took advantage ofthe “clout” admissions system. The university claimed the documents were“education records” protected by a federal confidentiality law, the FamilyEducational Rights and Privacy Act, or FERPA. FERPA requires colleges andschools to maintain a policy of keeping students’ individually identifiableeducation records confidential. The penalty for failing to maintain aconfidentiality policy is potential revocation of federal funding by the U.S. Departmentof Education, but that penalty has never been imposed in FERPA’s 37-yearhistory.

In the brief, the media organizations identify numerousother instances in which colleges have strained FERPA’s definition of“education record” to deny public-records requests for information that is notconfidential or “educational,” including audiotapes of government meetings,athletes’ parking tickets, payments to settle lawsuits, and videotapes ofschool bus altercations.

“Far from protecting the interests of students against abuseby their schools, FERPA instead has become the default response to anycitizen’s request for information, interposed to delay and frustratejournalists and parents alike as they attempt to discharge their legitimateoversight role over institutions of government,” the amicus brief states.

The brief points out that numerous courts have sided withthe news media and disagreed with the over-broad definition of “educationrecords” adopted by the University of Illinois and its supporters. Just thisyear, a state-court judge in North Carolina ordered the University of NorthCarolina to turn over athletic department records withheld on FERPA grounds,and a state-court judge in Arizona ordered Pima Community College to releasehundreds of pages of emails regarding Tucson shooting suspect Jared Loughner, aformer PCC student, over the college’s FERPA objections.

In the brief, the media organizations urge the SeventhCircuit to restrict the reach of FERPA to documents that: contain informationthat is actually confidential and not already publicly known, relate to astudent’s academic life and not to peripheral matters such as parking tickets,pertain directly and not tangentially to named students, and are stored in acentral records repository with the student’s academic records.

Since 1974, the Student Press Law Center has been devoted toeducating high school and college journalists about the rights andresponsibilities embodied in the First Amendment, and supporting the studentnews media in covering important issues free from censorship. The Center provides free information andeducational materials for student journalists and their teachers on a widevariety of legal topics on its website at www.splc.org.