TRANSPARENCY TUESDAY: It’s time to fix FERPA … by breaking it

I’ve had a lifelong love affair with the game of baseball. Plenty of people have made pilgrimages to Wrigley Field (been there) and Candlestick Park (done that), but I’ve watched Blowfish in Columbia, Aces in Reno, and Shorebirds in Salisbury. I saw two friends get married on the Sand Gnats‘ diamond in Savannah, and sat through a 30-minute delay in Staten Island while both teams searched the outfield for a lost contact lens. I can argue for hours about the designated hitter — on either side — and I’m less enamored of the infield fly rule than I was two weeks ago.

I believe that baseball, and not the Higgs particle, explains the universe, because baseball embodies the remainderless logic of physics. You can watch football defenders illegally hold the onrushing lineman on every play without a flag. You can watch basketball players thrash each other black-and-blue with elbows that draw no whistle. But baseball is a ruly game played by a ruly sort, and what unfolds over the course of nine innings is the validating perfection of laws that order and explain the state of play as reliably as gravity.

This is why, to those for whom the final out of the World Series begins the countdown to spring training, fewer things are more deeply offensive than an umpire with an inconsistent strike zone. More contemptible still is the umpire whose ball-and-strike calls observably favor one pitcher or one team. This disturbs the rhythm of the spheres, and it displeases the gods.

That is why I’ve run out of patience with FERPA — and why it’s time to fix this profoundly broken statute. By breaking it the rest of the way.

Today, the Student Press Law Center launched, a campaign to highlight the hypocrisy of educational institutions that call one strike zone when it benefits their self-interest in concealment, and far narrower strike zone when it benefits their students’ interest in disclosure.

FERPA, the Family Educational Rights and Privacy Act, started life in 1974 with a narrow and commendable purpose: To protect students against government overreaching. FERPA’s congressional sponsors were concerned that schools and colleges were accumulating vast amounts of information in secret files that might be used to students’ detriment without their knowledge. Records of psychological test results, or of membership in radical clubs, might be abused by law enforcement to profile and surveil unsuspecting students, with little assurance of accuracy and no opportunity for a wrongfully accused student to clear her name.

FERPA changed all that, by giving students (or in the case of minors, their parents) an absolute right to inspect and correct their “education records.” By law, a school or college has 45 days to produce — free of charge — all of the “education records” it keeps that directly relate to the requester. The requester may demand to insert corrective wording into an erroneous or misleading record, and if the school refuses, then the requester has the right to an appeal hearing to challenge that refusal. Almost as an afterthought, FERPA also made these same records confidential when requested by anyone other than the student or her parents.

Somehow, this statute born out of skepticism with a secretive and overreaching government has instead been perverted into an instrument of government secrecy and overreaching. Just this week, student journalists at Georgia State University were told — falsely — that they were not entitled to review police incident reports documenting sexual assaults on their Atlanta campus, because (in the view of the college’s legal department — although not in the view of Congress or those of us who live in the real world) police reports are confidential “education records.”

Since schools and colleges routinely classify every scrap of paper mentioning a student as a secret FERPA record when asked to comply with public-records requests, they must be held to that same standard when a student wants to inspect her own individual FERPA records.

That’s not my opinion. It’s the opinion of the U.S. Department of Education, which is tasked by Congress with interpreting and enforcing FERPA. Here, in a brief filed in 2001 with the U.S. Supreme Court, is how the DOE explained the equivalency of FERPA’s disclosure and secrecy obligations:

The designation of a document as an education record under FERPA means not only that it is subject to restrictions against release without parental consent, but also that parents have a right to inspect and review the record, a right to a hearing to challenge the content of the record to ensure that it is not inaccurate, misleading, or otherwise in violation of the privacy rights of the student, and a right to insert into such records a written explanation by the parents regarding the content of the records.

In plain English — if a record is secret under FERPA when a reporter requests it, then it must be disclosed when the student appearing in the record asks to see it.

Every college student in America — every student — needs to fill out this form letter and submit it to the college president’s office, asking to see all FERPA records as the college itself defines FERPA. That means every email sitting in every employee’s “in” box that refers to the student. That means every parking citation issued to the student’s vehicle. That means every list, every roster, every videotape — every everything where a student’s name or face or Social Security number or other identifier might be found.

We all know just what will happen. Those videotapes and emails and parking tickets — documents commonly misclassified as FERPA records even when they contain no legitimately private information — suddenly won’t be FERPA records when hundreds of students show up demanding to inspect and correct them.

It’s time to restore consistency and sanity to FERPA. If you’re a college student reading this, you can help make it happen. And if you’re a journalist who’s been given a questionable FERPA-based excuse for rejecting a public-records request, you can submit it for rating on the Arne Scale, and fact-check the school’s FERPA claims against reality.