University of Texas student government says notes from interviews with applicants is protected by FERPA
The student body president and student government assembly at the University of Texas at Austin is responsible for filling a number of internal and external positions. In the spring, a student filed a petition to the school’s Judicial Court after student government’s interview notes with each applicant were not released, as is required under the group’s internal rules, The Horn reported.
The Judicial Court ordered student government to release the interview notes, but they have yet to do so. UT-Austin’s student speaker, Braydon Jones, told The Horn that on the advice of the university’s legal department, the group was not releasing the interview notes. Doing so would violate FERPA, the Family Educational Rights and Privacy Act, he said.
Source: The Horn, Jones: SG Exec will not release interview notes for applicants (8/6/2014).
Former Executive Director Frank LoMonte: Oh, this brings back such memories.
Back in the day, they used to fill Student Government appointments at the University of Florida through a glorified beauty contest that consisted primarily of reviewing glamour shots of the candidates. (I know this because, as a reporter, I got hold of the meeting notes where a candidate in need of a Clearasil intervention got dinged for looking like a “geech monster.”)
It’s a fair bet that we’ll find a few choice observations about weight, fashion, hairstyles and grooming habits when we find out what’s in the notes that UT elected officials are trying so hard to conceal. What we WON’T find is any FERPA-protected information, because notes created by Student Government representatives aren’t confidential education records. For lots of reasons.
Let’s start with the duh-obvious one: Because the Supreme Court says so. In a 2002 ruling, the Court decided that grades recorded on quiz papers by other students were not a FERPA-protected secret, because the grades were created by students (not school employees) and the quiz papers were not “maintained” in a central school database.
If grades on quizzes – which are pretty near the bullseye of “education records” – aren’t confidential, then we know an individual student’s notes about a candidate’s qualifications for office can’t be.
Not done yet. The U.S. Department of Education’s FERPA regulations expressly exclude the following from the definition of confidential records:
Records that are kept in the sole possession of the maker, are used only as a personal memory aid, and are not accessible or revealed to any other person except a temporary substitute for the maker of the record.
Sounds like personal notes, right? Like, oh let’s say, the personal notes of a student government officer after interviewing a candidate?
What if the interviewers did "reveal" the notes to other people within student government? Does that mean the notes become FERPA records because they were shared?
UT better hope not. Because that’s where the violation of FERPA would have occurred: When other student government members were given access to students’ “quote-unquote confidential education records.” Except when necessary to respond to a public-safety emergency (or where a written waiver exists), FERPA doesn’t allow custodians of confidential records to selectively show them around.
So if UT’s legal office really wants to take the position that student interview notes are FERPA records, they’re going to find it awfully hard to defend against a federal investigation when a student named in SG interview notes decides to file a complaint. (Here’s the address for filing a complaint, not that we’re necessarily saying anyone should – ooh look, there’s a toll-free number too.)
Not done yet. FERPA regulations (34 C.F.R. Part 99.10(e) provide that, once a student invokes her right to inspect her own FERPA records, the institution must make sure that no FERPA records are destroyed. Is UT issuing directives to every member of student government to save his notes? If not – uh-oh, those better not be FERPA records that just went in the recycling bin. (Since we know this can’t be happening – students undoubtedly destroy their notes routinely – UT can’t really think those notes are FERPA-protected.)
Still not done. Remember that FERPA protects only information that’s gleaned from confidential education records. This probably shouldn’t need explaining, but information that a student voluntarily divulges to other students when seeking political advancement is not any of those things – not confidential, not educational, and not a record.
If a student’s statement of his qualifications for office is a confidential FERPA record, that means FERPA would cover any discussion involving the merits of a student candidate: a recording of a campaign debate, a transcript of a Student Senate meeting … you see where this is going. Even if UT’s legal geniuses don’t.
We rate this: not protected by FERPA at all