When an athlete disappears from a major-college sports team, the back-story is a matter of intense public interest and speculation. Journalists trying to tell that story are accustomed to being told that matters of team discipline – even ones that involve charges of criminal behavior – are confidential under federal privacy laws.
While the Family Educational Rights and Privacy Act (“FERPA”) probably does restrict what colleges can disclose about individual students’ disciplinary records, FERPA confidentiality can be waived. And colleges routinely ask their student athletes to waive their privacy rights, both for internal policing purposes and for external publicity purposes.
As part of “Sunshine Week” – an observance dedicated to raising awareness about government transparency laws, as well as where those laws fall short — the Student Press Law Center conducted a random “public records audit” of major colleges across the country to obtain copies of the FERPA privacy waivers that athletes are asked to sign.
Our primary objective? To test whether colleges are being truthful when they claim FERPA confidentiality, by seeing whether their athletes have in fact waived their FERPA privacy rights.
The colleges that responded to the SPLC’s open-records requests produced multi-page documents that, while enlightening, rarely contained blanket privacy waivers of the sort that would clearly entitle a journalist to demand access to disciplinary records. However, because no two waiver policies are exactly alike, it still may be valuable for journalists to ask the colleges they cover for a blank copy of the privacy waivers — and, for that matter, any other agreements — that competitive athletes are asked to sign.
The University of Utah’s waiver policy is especially noteworthy. It provides that the university may release an athlete’s academic information, but adds: “I understand that the athletics department will never release my [grades] unless it is for a positive story or to nominate me for an academic award” (italics added). It is rare for a college (or any government agency) to admit that it selectively releases information only for “positive” news coverage — so perhaps Utah deserves extra points for candor.
(Interestingly, of the institutions surveyed, only Utah explicitly provided a waiver of confidentiality so that a player’s medical information could be shared with the news media, to inform the public about the extent of a player’s injuries, treatment and recovery. Since such information routinely is publicized without a written waiver, either athletic departments must believe that such information is not covered by federal privacy laws — and they are probably right — or they must be crossing their fingers and hoping no one ever complains.)
At Louisiana State University, athletes agree to let the institution share their confidential information – including grades, records of student employment and even drug tests – with the athletes’ parents. Ordinarily, once a student turns 18, FERPA prevents the sharing of such information with parents. Most other institutions that we surveyed gave signers the option of designating a parent — and/or an attorney — to have access to FERPA information; only LSU’s waiver appeared to be mandatory.
While institutions are fiercely protective of confidentiality when it comes to releasing newsworthy information to the public, many require their athletes to disclose significant amounts of personal information for the athletic department’s in-house use.
For instance, Ohio State University – which is so hidebound with information about its scandal-plagued football program that it’s being sued by ESPN – requires athletes to disclose not only their cell-phone numbers, but which service provider they use, who pays the bill, and what it costs every month.
Perhaps most interestingly, nearly every institution requires athletes to agree to refrain from “negative” or “controversial” or “offensive” speech on social networking sites. A typical policy was that of the State University of New York-Buffalo, which cautions that athletes “could face discipline for violations of the standards or philosophies of the University” if they “post information, photos, or other items online that could embarrass you, your team, your family or the University.”
At a public institution where students have the benefit of the First Amendment, such policies are constitutionally dubious. We’ll be exploring this issue in the Spring 2012 edition of the SPLC’s Report magazine, which will also look at the burgeoning for-profit industry of athlete social-media monitoring.
Our survey of FERPA waivers included 21 universities. 18 schools responded to an initial request letter, and we ultimately obtained records from 14 schools.