Source: C.J. Ciaramella, University of Oregon alumnus who is a reporter for the Washington Free Beacon, via Twitter.
Former SPLC Executive Director Frank LoMonte: Hang on a second, I’m on the phone with the FERPA Police. “Hello, FERPA Police? Yeah, I’d like to report a violation. The University of Oregon is letting a bunch of students email confidential FERPA records back and forth to each other. Right, they’re just emailing these FERPA records from one student senator to another student senator. No, they’re not redacting the emails, they’re letting these 20 student senators see everything. Oh good, you’ll send a squad car right over?”
You see the point, right? If an email from Senator Huey to Senator Dewey is a FERPA record, then the violation occurred when the email was shown to 18 other senators on the listserv – because (except for safety emergencies) FERPA doesn’t allow for confidential education records to be shared with anyone other than (a) a university employee with a business need to know or (b) a university contractor who has both a business need to know AND a signed confidentiality agreement. These students are neither.
But of course, an email from Senator Huey to Senator Dewey is not a FERPA record, because the Supreme Court told us so:
The word “maintain” suggests FERPA records will be kept in a filing cabinet in a records room at the school or on a permanent secure database, perhaps even after the student is no longer enrolled. Owasso Independent School District v. Doe, 534 U.S. 426 (2002).
If Senator Donald shows up at the Registrar’s office and asks to see his FERPA records, nobody tells him, “Wait right there while we do a search of all of the email listservs to see if you’ve ever written anything, or anyone’s ever written anything about you.” Because those aren’t “maintained” as a part of Donald’s university file. Because they aren’t FERPA records.
The only way a student can create a FERPA record is by sending a confidential communication to a university employee, e.g., appealing for the change of a grade. A note from one student senator to another student senator – and let’s just assume they’re talking about Senate business, not exchanging report cards, over the listserv – simply can’t be a secret education record.
If Oregon really wants to take the position that emails between student senators are FERPA records, then they better dial up Phil Knight and see if he can write them a check for the hundreds of millions of dollars that the U.S. Department of Education is going to fine them. Because I bet some of those senators have forwarded some of those quote-unquote “FERPA records” to their friends, or even read them out loud at Senate meetings.
You guys want to maybe reconsider that answer, OU?