The Student Press Law Center (“SPLC”) and other open-government groups are urging the Illinois Appellate Court to grant journalists access to records of a university’s investigation into sexual harassment claims against coaches and a settlement paid to resolve those claims.
In a brief filed in support of Illinois’ State Journal-Register, the SPLC argues that records documenting official misconduct or the spending of taxpayer money cannot be withheld on the grounds of federal “student privacy” law.
The SPLC filed its friend-of-the-court (“amicus”) brief Jan. 2 with the Fourth District Appellate Court of Illinois, in the case of State Journal-Register v. University of Illinois-Springfield.
“Access to public records about public spending and official misconduct is essential if the public is to effectively discharge its oversight responsibilities over powerful government institutions such as the University of Illinois-Springfield,” the SPLC asserts in the brief. “Far from protecting student privacy, FERPA instead has become the default response to any citizen’s request for information, interposed to delay and frustrate journalists and parents alike(.)”
The case involves journalists’ requests under Illinois’ Freedom of Information Act for records concerning sexual harassment complaints against one or more coaches in the University of Illinois-Springfield women’s softball program. The head coach and an assistant coach resigned in 2009, and a settlement agreement – released by UIS in heavily redacted form – shows that a former player was paid $200,000 to settle her claim regarding the behavior of the assistant coach during a road trip. The State Journal-Register has quoted the player’s lawyer as saying that the player was sexually assaulted.
In August 2012, an Illinois circuit judge ruled that UIS could withhold records relating to the investigation and settlement of the athletes’ claims. The judge cited FERPA as well as exemptions in Illinois state FOI law for the protection of personal privacy and for records reflecting the government’s “deliberative process.”
In the brief, the SPLC points out that FERPA confidentiality covers only records that are “directly” related to students, and that many courts have ruled that misconduct complaints by students against government employees are not “student records.” Such records would not be kept in the registrar’s file as part of the student complainant’s record, but would be filed with the employee’s personnel file – and FERPA specifically says that the personnel records of non-student employees are not confidential.
The brief notes that colleges are especially prone to claim the protection of FERPA when faced with a demand for records about scandals involving their athletic coaches – but most judges have rejected such a broad application of “student privacy.”
The brief argues that, even if student confidentiality might require removing the names of students from some records, FERPA is not an excuse for withholding public records entirely or removing large portions of factual narrative. The public is entitled to the facts in such situations, the brief asserts, to assess whether the university responded diligently to the students’ complaints and whether there are larger problems with the behavior, training and supervision of university personnel.
“FERPA has become ‘the dog ate my homework’ of accountability for schools and colleges,” said attorney Frank D. LoMonte, executive director of the Student Press Law Center. “We are consistently seeking colleges crying ‘FERPA’ and concealing records even when there is clear legal precedent that the records are public, if the records involve behavior that the college would prefer to sweep under the rug. That is an illegitimate use of FERPA, and such misuses undermine the credibility of the law for those cases when real student privacy concerns truly are at stake.”
The brief was prepared and filed by volunteer legal counsel from the Chicago office of SNR Denton, one of the world’s largest law firms with 60 locations worldwide and an active practice defending the rights of publishers and other news media clients. The legal team included partner Samuel Fifer and associate Katherine L. Staba.
Since 1974, the Student Press Law Center has been devoted to educating high school and college journalists about the rights and responsibilities embodied in the First Amendment, and supporting the student news media in covering important issues free from censorship. The Center provides free information and educational materials for student journalists and their teachers on a wide variety of legal topics on its website.
Frank D. LoMonte, executive director