FERPA Fib of the Year, 2014 Edition

It’s fitting that the 365-day stink-bomb that was 2014 ended with the U.S. Department of Education wadding up the last remaining shred of its credibility on FERPA and pulling the flusher with both hands

It was that kind of year. 

Like Pavlov’s dogs at suppertime, school and college legal departments reflexively yapped “FERPA” anytime a journalist came seeking public records that might be damaging to the institution’s image. But we discovered that the federal student privacy law isn’t all-powerful. Like any law, it must yield to more urgent imperatives.

Such as: the urge to humiliate your own students.

And so it was that a California high school went unpunished for the Worst Pep Rally Ever, where administrators – evidently hired away from their web-design jobs at healthcare.gov – decided it would be “motivational” to read off the names of students declared ineligible to graduate for academic or disciplinary reasons. (Great idea, kids – the next time you’re hauled into the front office in the Kern School District for calling your principal a douchebag, just explain how you were trying to “motivate” her to do her job better. Let us know how that works!)

And so it was that a Clay County, Fla., school went unpunished for its “I’ll teach YOU to wear a distracting outfit!” response to a new kid’s mistake of wearing a skirt one inch too short – by sending her mother a note politely explaining the dress code and reminding her to be mindful of it in the future. No, ha ha, that’s what a sane person would have done, but of course we’re talking about Florida school administrators, so naturally what they did was force the 15-year-old to go to class in an electric clown suit that the school attorney somehow defended as not giving away anything about Miranda Larkin’s disciplinary status (doubtful, unless this was Clay County School for the Blind).

When kids do this stuff to other kids, we call it “bullying” and somebody gets suspended. When authority figures do it, we call that “managerial discretion.”

Last year, we “awarded” the first annual FERPA Fib of the Year to a South Georgia school district that actually made a grieving family go to court to obtain surveillance video shedding light on their son’s unexplained death in a high school gym after school hours.

It turns out California’s Kern School District is onto something – public humiliation is motivational! Because darned if somebody didn’t go out and try to outdo Lowndes County for crassness in the face of tragedy. 

Westfield Academy and Central School near Buffalo, N.Y., told the family of a 16-year-old who collapsed and died after a football injury that – sorry, rules are rules! – they’d have to file a lawsuit if they wanted to see the video of their son’s last football game, because football game videos are “confidential education records.” (Considering that FERPA applies only to things that are confidential, Westfield’s must be the worst-attended games ever.)

Tempting as it is to hand the trophy to Westfield school officials – though, being so heavily coated in slime, they’d probably drop it – the big education story of 2014 was the gradual awakening across America’s colleges that the accurate number of rapes occurring on campus probably isn’t zero.

While many things about the FERPA privacy statute are unclear and subject to interpretation, two things are not: First, that a student who asks to see her own confidential FERPA records must be given access to them promptly and without cost, and second, that the outcome of a disciplinary hearing resulting in a finding that a student committed a violent criminal offense is not a confidential FERPA record.

You remember that classic “Far Side” cartoon by Gary Larson, about what we say to dogs (“I’m telling you for the last time, stay off the couch, Ginger”) and what they hear (“Blah blah blah, blah blah blah, Ginger”)? That’s the typical college legal department. You show up and say, “I’m a rape victim and I’d like to see my FERPA records,” and they hear, “Blah blah blah rape blah blah blah FERPA.”

But for the college that most perfectly combined the two signature elements of 2014 – (1) secrecy about sexual assault and (2) stupidity – into sort of a cocktail of “secre-pidity,” you can’t top Columbia University.

Last spring, lists that purport to name students guilty of sexual assault began appearing on the stalls of women’s restrooms across Columbia’s New York City campus. Columbia responded by painting over the lists, but paint didn’t cover the larger controversy about the university’s ham-handed response to students’ rape complaints. (It didn’t help that, in an attempt to prove its sensitivity, Columbia served a festive “sexual violence awareness cake” at an office party, which is kind of like trying to prove you’re not a racist by coming to the office party dressed as Buckwheat.)

Columbia’s student publications have written about the lists and published photographs of the graffiti, redacted to obscure the names. Editors at Bwog, a student blog that covers the campus, wrote that while preparing a story about the graffiti, Columbia administrators told them “that publishing the list would violate Title IX as well as FERPA.” An editor at the Spectator newspaper told the Student Press Law Center at the time that she’d had a similar conversation with a Columbia administrator, who warned her that the paper would be at risk of violating both FERPA and Title IX, the federal anti-discrimination statute, if photos of the graffiti were published.

(We interrupt this program for an Actual Legal Fact: FERPA and Title IX apply to educational institutions that receive federal education funding. Blogs don’t receive federal education funding. Though that would be a much better use of the Department of Education’s money than keeping Westfield Academy and Central School open.)

You want to hold out some hope for the (admittedly unlikely) possibility that two different Columbia editors aren’t just mis-remembering two different conversations, but are mis-remembering two different conversations exactly the same way.

You want to hope that, because if administrators at Columbia University are stupid enough to believe that newspapers can violate federal confidentiality laws by reporting what’s written on bathroom walls, then that means they can’t tell the difference between a toilet stall and a filing cabinet in the Registrar’s office. In which case… eeewww!

But secretly, let’s hope that graffiti on bathroom stalls really is covered by FERPA. Because once you declare something to be a FERPA record, that means the student named in the record has a federally protected right to add corrective wording amending inaccuracies in the record. And once a student serves notice that he wants to inspect his FERPA records, the college is legally compelled to retain the record and not destroy it. (Say, by painting over it.) We all want to see Columbia try to get that bathroom wall into the Registrar’s filing cabinet.

As it turns out, college journalists made the proper ethical call – without legal coercion – and obscured the names from their news coverage, recognizing that anyone can accuse anyone of anything on a bathroom wall since it’s, um, not like bathroom walls are official college documents. You know, the kinds of documents FERPA protects.

Telling journalists that they’ll violate FERPA if they publish the contents of bathroom graffiti means you’re Number One, Columbia. Or maybe Number Two.