Dozens of times a year, a journalist or parent asks for access to information necessary to evaluate whether schools are safe and effective – and gets turned away on the grounds of FERPA. Sometimes those uses of the federal student privacy law are legitimate, but often, they’re not. At times, they’re more than just illegitimate – they’re unconscionable.
At the Student Press Law Center, we’re accumulating quite a collection of “dog-ate-my-public-records” uses of FERPA. Some are so ignorant that they’re amusing, but others are no laughing matter. For the latter kind, we’ve created the “FERPA Fib of the Year.” Each year, we’ll recognize one “standout” school or college that goes beyond just a good-faith misunderstanding of FERPA and uses the statute to interfere with public accountability in an entirely indefensible way.
The candidate list for 2013 was a distinguished one, and settling on a single fibber was frankly difficult. Among the impressive contenders:
- University of Delaware General Counsel Lawrence White authored a truly hallucinatory essay for the Chronicle of Higher Education insisting that “the U.S. Department of Education has provided lucid guidance” about the scope of FERPA privacy. Considering how many times the Department has reversed and contradicted itself – and how many times its interpretations have been rejected by courts as irrational – you’d have to ingest a near-lethal dosage of roofies for the DOE’s enforcement of FERPA to appear “lucid.” We wish Mr. White a speedy recovery.
- The University of Mississippi told a student photojournalist that shooting news photos of students leaving a lecture – where they were being chastised for anti-gay heckling during a theatrical performance – would violate FERPA. Everything about that interpretation was right except for all the words. What a person’s face looks like is not a piece of confidential education information. Student journalists can’t violate FERPA because they aren’t educational agencies that receive U.S. Department of Education funding. Other than that, the advice was perfect.
(It’s impossible to imagine doing any job in America other than “college public-relations officer” so incompetently and still keeping it. If your job is to provide information and you provide misinformation, that’s like having a job where you’re supposed to sell clothes, but instead you give them away for free along with shopping bags of the store’s money.)
- The University of Iowa administration belongs in a class by itself – if the words “class” and “University of Iowa administration” can coexist in one sentence – for applying FERPA in a manner literally less accurate than having decisions made by a blindfolded chicken pecking on a yes/no form.
First, the Des Moines Register revealed that Iowa was sharing confidential records – even grades – with the county sheriff’s office when a student or alumnus applied for a concealed-weapons permit. If you sat down and tried to design the exact factual circumstance that FERPA was enacted in 1974 to make illegal, this would be it: Sharing your files with the local police so they can use the information against you. You can’t get that one wrong. Yet somehow Iowa did.
And then in November, when the Iowa Press-Citizen reported on a string of reported campus sexual assaults, a university spokesman told the newspaper: “If [a rape] indeed does involve a student and disciplinary action is taken against a student, those records are confidential because they’re student records. So under federal law, we can’t release those details.”
That’s a terrific answer – in 1987.
But Congress rewrote FERPA in 1992 specifically and unequivocally to say that the outcomes of disciplinary proceedings in which a student is found liable for a crime of violence or a sex crime are no longer FERPA-protected. So Iowa’s explanation would be perfect with the addition of one little word: “Not.”
- At California’s Bret Harte Union High School District, you can attend the swimming meets, take pictures, shoot video, and write down everything you see. But, according to the school district’s lawyer, you can’t ask to see a copy of the scoresheet. The district legal counsel told a local sports blogger that – even though high schools across America have harmlessly publicized the results of sporting events for 40 years without once blipping the federal FERPA radar – he’d decided this universally observed practice was now a privacy violation. To tell your client that it’s illegal to do what thousands of school districts have been doing for decades, you have to be pretty convinced that you’re the smartest school lawyer in the country. Otherwise, you might just be the dumbest.
But for a misapplication of FERPA that crosses the line from boneheaded into evil, we’re going with the Lowndes County, Georgia, school system. The district made the grieving family of 17-year-old Kendrick Johnson, who died under mysterious circumstances in the Lowndes High School gym, go to court to obtain surveillance video that might help explain his death.
Here’s why the family wanted the video: To see if the farfetched explanation they were given for their son’s death – that he accidentally rolled himself up in a gym mat and died – was true, or whether foul play was involved.
Since Kendrick’s parents have an absolute right to see their own child’s FERPA records, it wasn’t his privacy that the school was worried about. The only other people recognizable on the video might be (1) students participating in phys-ed class, which is done in front of a gym-ful of people and isn’t the least bit confidential, or (2) potentially, people who had a hand in Kendrick’s death. If those people feel like filing a FERPA privacy complaint with the U.S. Department of Education, they should have 20-years-to-life to do it.
Leaving aside the fact that a surveillance video isn’t a FERPA education record to begin with (as a New York court has already held in a similar case), there’s a recognized FERPA exception when release is necessary in furtherance of public safety. Wild guess, but “finding out whether a murderer is killing students on campus” is probably what the Department of Education had in mind when it created the “public safety” exception.
Putting FERPA ahead of the needs of a grieving family – and the need to reassure the public that a killer isn’t loose in the school – ought to disqualify you from any future workplace without a drive-thru window. Congratulations to the Lowndes County School District, for the most reprehensible misuse of FERPA of 2013 – or maybe ever.