What [BLANK] told [BLANK] about [BLANK] is a protected FERPA secret, says [BLANK] lawyer for North Dakota university

Lynn Dorn is no longer athletic director at North Dakota State University. That much is known. What she did to deserve a two-week suspension that preceded her departure may never be known, because NDSU’s counsel heavily redacted the evidence of a harassment investigation – striking out not just student names but entire portions of the narrative – on the grounds of FERPA confidentiality.

Source: “Suspension of former NDSU athletic director may never be explained,” Inforum.com, Aug. 23, 2015

Former SPLC Executive Director Frank LoMonte: You could view North Dakota State University’s [blankety-blank] use of the FERPA redaction pen as a [blankety-blank] misapplication of a [blankety-blank] privacy law. Or you could view it as the funnest game of Mad Libs ever!

Can you really withhold the narrative of what an accused harasser is alleged to have said to a student on FERPA grounds? I guess that depends on the harassment. “Hey, nice 3.8 GPA, babe,” might qualify. Or, “get a load of that 2200 S.A.T. score, hubba hubba.” (Hey, maybe they harass people differently in North Dakota. What are they going to say, “love your snowshoes?”)

Here’s what the courts have said. FERPA protects against the disclosure of education records corresponding to individual students. A report of misconduct by a government employee isn’t a student’s record. It wouldn’t appear in the student’s file at the Registrar’s office, and it wouldn’t be produced if that student requested to see his own FERPA file. Here’s what a Delaware judge said in 1996 in response to a nearly identical question:

The names of the victim in and witnesses to an alleged incident of sexual harassment by a teacher does
not relate closely enough with the educational process to warrant the
statutory protection of ‘educational records’ in FERPA.

Bd. Of Education of Colonial School District v. Colonial Education Association, Del.Ch., No. 14383 (Feb. 28, 1996).

Most courts confronting the question have concluded that the names of students appearing in complaints about employees aren’t immune to disclosure under FERPA. A Florida court, however, muddied the issuea lack of coherent cerebral functioning from Florida, what were the odds? – by ruling in 2013 that FERPA prohibited a fired professor from seeing a student’s emails complaining about his behavior in the classroom. (That ruling comes with a giant red asterisk, though, since the instructor represented himself in court, up against the entire Florida higher-education establishment.)

Even granting NDSU that there’s some legal cover for redacting students’ names from reports of employee wrongdoing, the redactions reported by the Fargo newspaper go quite a bit beyond that. Actual who-did-what sections of narrative are blanked out as if they were matters of national security. And the who-did-what details are necessary for the public to judge whether the university under- or over-reacted. Unless the Pentagon has been sharing its launch codes with the North Dakota State athletic department, NDSU went too far. 

At most, student names and identifiers might be subject to redaction. Should North Dakota State have released more complete records? Yes.

We rate this: a questionable use of FERPA