For-profit Kentucky college sanctioned $126,000 after “meritless” claim of FERPA secrecy

Colleges are adept at frivolously crying “student privacy!” to conceal information that might expose institutional wrongdoing, but one Kentucky college is learning that misuse of the federal student confidentiality statute can carry a heavy price.

A circuit court judge in Franklin County, Ky., is fining Lexington-based National College $1,000 per day for raising unfounded legal arguments in refusing to obey a subpoena from the state’s attorney general, Jack Conway, demanding disclosure of internal college records dealing with marketing, employee compensation, student complaints and other management practices.

The attorney general’s office is seeking National’s records as part of an ongoing lawsuit that alleges National made deceptive advertising claims inflating the successful job-placement rate of its graduates. The college has been fighting Conway’s demand for records for nearly three years.

Having lost in court at every step, the college finally played “the FERPA card,” claiming that the documents Conway sought could not be produced without violating the Family Educational Rights and Privacy Act, which requires colleges to safeguard the confidentiality of student education records.

In a Dec. 3 order, Circuit Judge Phillip J. Shepherd made quick work of that argument, which he termed “meritless.” FERPA, he explained, did not excuse the college from complying with the subpoena for multiple reasons. First, FERPA allows colleges to produce student records in response to a “lawfully issued subpoena.” Second, the documents could easily be “de-identified” with the removal of student names. And third, the records were protected against public re-disclosure under a court-issued protective order, so there was no risk that student information would be distributed beyond the AG’s investigative team.

“In short,” the judge concluded, “National College’s attempt to invoke FERPA is yet another example of a continuing pattern of meritless litigation tactics to obstruct and delay the lawful investigation of the Attorney General.”

The court ordered National to pay sanctions of $1,000 a day, dating back to July 1 and continuing until production is made, which as of the date of the order totaled $126,000.

Since he now has a court ruling establishing that FERPA-protected records can be shared with the attorney general’s office as long as a confidentiality order prohibits further public disclosure, Conway owes the University of Kentucky a knock on the door. Last December, UK refused to let the attorney general inspect athletic-department records that were the subject of a public-records dispute with the Kentucky Kernel student newspaper. Unable to see the originals for himself, Conway simply took the college’s word that the records — concerning the eligibility of basketball star Nerlens Noel, now of the NBA’s Philadelphia 76ers — were protected by FERPA.

If you feel a draft, UK, it’s because Judge Shepherd just yanked away your fig leaf.

You can read more about colleges’ misuse of FERPA on the FERPA Fact Tumblr or in the SPLC’s FERPA White Paper.