SPLC joins open-government leaders urging Congress to hold hearings on FERPA reform


Contact: Frank LoMonte, executive director(703) 807-1905 / director@splc.org

Six leading open-government organizations, including the Student Press Law Center, called Wednesday for congressional hearings on the rampant abuse of the federal student privacy law, FERPA, which enables schools and colleges to conceal scandals by misclassifying government documents as “education records.”

“As widely misused by educational institutions, FERPA has become an impenetrable cloak concealing essential information about school safety and effectiveness, even where no conceivable student privacy interest could be at stake,” says the letter to U.S. Sens. Edward Markey, D-Mass., and Orrin Hatch, R-Utah, who recently proposed legislation amending the privacy law. “Imprecise language in the statute has produced nonsensically broad interpretations by courts, by the Department of Education and by educational institutions themselves, routinely resulting in concealment that puts safety and accountability at risk.”

Besides the Student Press Law Center, the letter was signed by the American Society of News Editors, the Society of Professional Journalists, the Reporters Committee for Freedom of the Press, OpenTheGovernment.org and Californians Aware.

FERPA, the Family Educational Rights and Privacy Act, was enacted in 1974 to require all schools and colleges that accept federal aid to enforce a policy of letting students and families inspect and verify their “education records” and to keep those records confidential from outsiders. But the statute often is cited by colleges and schools bent on concealing scandals that involve non-confidential matters of public concern. In recent months, the University of Michigan and the University of Oregon have cited FERPA in refusing to discuss their delay in disciplining student-athletes accused of sexual assault and – as Wednesday’s letter notes – Oklahoma State University invoked FERPA in refusing to tell its own police department or warn the public that a known serial sex offender was at large in the community. Attempting to evade their disclosure duties under state open-records laws, schools and colleges have classified everything from parking tickets to sports scores as “confidential education records”

On May 14, Markey and Hatch circulated a draft bill, the Protecting Student Privacy Act of 2014, responding to the concerns of data-privacy advocates fearful of a federal push to gather more detailed data to track students’ academic performance that could be shared with researchers.

The proposed Senate bill would require schools and colleges to enforce tight security requirements on any third parties who are allowed access to student data, and calls on schools to minimize the amount of data they create that can be linked to individual students. But the bill does not address the widespread misuse of FERPA to conceal public records that are neither educational nor confidential.

“Access to public records is absolutely essential for journalists and citizens alike to assure themselves that schools are functioning properly. Despite good intentions, FERPA is a completely broken statute that is effective only in obstructing accountability of public educational institutions,” said attorney Frank D. LoMonte, executive director of the SPLC. “Right now, FERPA is so dysfunctional that a college can’t even produce a student’s own FERPA records when he tries to exercise his right to inspect them, because colleges don’t even understand what they’ve classified as FERPA records. Congress needs to scrap this law and start over, with a narrowly drawn statute that strongly protects the privacy of legitimately private educational records while letting the public exercise its watchdog function.”

The letter warns that the draft Markey-Hatch legislation would actually lead to greater secrecy by expanding the definition of what is confidential. The current statute provides that information may be withheld only if it comes from a student’s “education record,” but the proposed revisions would remove that qualifier. Without that safeguard, the letter warns, almost any document referring to a student – even something as harmless as the list of football players flying on a team airplane – could be classified as confidential and concealed.

The Student Press Law Center, an Arlington, Va.-based nonprofit provides legal assistance and advocacy in support of student journalists nationwide seeking access to information from schools and colleges. The Center provides free legal training and educational materials for student journalists and their teachers on a wide variety of legal topics on its website at www.splc.org.