Now that we know FERPA is unconstitutional, what do we do about it?

In today’s Inside Higher Ed, I make the case for why the federal student privacy law, FERPA, almost certainly will be struck down as unconstitutional if challenged.

The law’s requirements — that a school or college enforce the confidentiality of “education records” or forfeit every dollar of federal education money — are so coercive that they flunk the standard set by the U.S. Supreme Court in striking down parts of President Obama’s health reform act.

In the so-called “Obamacare” ruling, NFIB v. Sebelius, the Supreme Court invalidated what it termed a “gun to the head” financial threat — the loss of federal Medicaid dollars — as a tool to compel states to comply with a federal policy decision.

That, as I explain on Inside Higher Ed, is exactly what FERPA does. Which is why — if anyone is ever penalized for violating the statute, which has yet to happen — the law will be voided as an impermissible use of federal Spending Clause power.

FERPA, the Family Educational Rights and Privacy Act, actually is far more offensive to the Constitution than was the Medicaid expansion in President Obama’s health law. The Medicaid expansion did not contradict or override long-established state priorities. FERPA does. FERPA requires schools and colleges to disobey their disclosure responsibilities under state open-records laws. It undoes the delicate privacy-versus-transparency bargain struck by state legislatures.

Every state agency has the discretion to release newsworthy public records if the information in the records is not legitimately confidential. Every agency, that is, except a school or college.

Knowing that FERPA is a ticking time bomb waiting to self-destruct, it would be irresponsible for Congress and the U.S. Department of Education to do nothing. They should promptly convene hearings to come up with a sensible replacement statute that confines itself to the records that FERPA’s authors intended 38 years ago — the academic and disciplinary records that might be misused to a student’s detriment if they fell into the hands of snoopers. Not parking tickets. Not tapes of Student Senate meetings. Not misconduct complaints against administrators.

They should disarm the unconstitutional “gun-to-the-head” penalty that causes schools and colleges to hysterically over-classify records as FERPA records for fear that one false move will bring financial ruin.

And they should provide a prompt dispute-resolution process for those aggrieved by the misclassification of public documents as “confidential education records” — with severe financial penalties for the frivolous misuse of FERPA to conceal non-confidential information the public is entitled to know.