FERPA Fact, massive head injury edition: College claims athlete concussions stats are confidential

Although comparable colleges released the information without hesitation, East Tennessee State University claims that the number of athletes treated for concussions is a FERPA-protected secret. When the Johnson City Press asked for the number of times football players suffered concussions during practices and games, an ETSU lawyer responded, “The information requested falls into the education record category.”

[Source: “ETSU won’t share football concussion numbers as NCAA faces class action lawsuit,” Johnson City Press, Feb. 5, 2017]

Former SPLC Executive Director Frank LoMonte: “Lie” is such a strong word. Its use is being heavily debated among the commentator class as journalists search for polite, respectful ways of alerting their audiences that assertions being offered as the rationale for life-altering national policy decisions are not, in the strictest sense of the term, “reality-related.”

So let’s stay polite and respectful, and let’s assume that “concussion statistics are confidential” isn’t an actual “lie,” per se, but more of an “alternative fact” of the sort being popularized in Washington circles. 

In the known universe in which colleges other than East Tennessee State University exist, there is of course no prohibition whatsoever on giving out information about athlete injuries – even with their names attached, let alone the statistics that a Press reporter asked for.

The Atlantic Coast Conference, for instance, instructs its member colleges to release – with names – a weekly report of which players may miss games due to injury. Those weekly reports have been regularly published in news outlets nationwide for years, without the first peep from enforcers at the U.S. Department of Education that FERPA confidentiality has been breached. So either the entire rest of the college athletics world is misinformed, or the ETSU legal department is.

Education lawyers have at times misapplied seemingly un-mis-apply-able guidance from the U.S. Department of Education that says, in simple English, don’t give out a statistic if by giving out the statistic you are giving out confidential information about an identifiable person. What that means is, if a requester asks, “Tell me the number of Filipino students in your school who failed the graduation exam” and only one Filipino student is enrolled, giving out the number “1″ confirms that the student failed and giving out “zero” confirms that he passed. So that statistic genuinely can’t be released, as it discloses something confidential about a known individual.

The statistic “1 concussion” doesn’t do that. If you are able to match the number “1″ with wideout Jimmy Jones, it’s only because you already know that Jimmy had a concussion. The statistic gives away nothing. By definition, then, it is not protected by FERPA.

ETSU’s legal department told the newspaper that concussions aren’t covered by the scope of its athlete privacy waivers. Politely and respectfully, that sounds like a total load of crap. Like all athletic programs, East Tennessee State has released information about athlete injuries, and journalists have published that information, without incident. 

But even if it were true, it’s irrelevant. 

FERPA protects only the contents of individual students’ confidential education records, and any decently run athletic department in the year 2017 almost certainly keeps records of the incidence of concussions without needing to dig through each athlete’s medical file individually. If ETSU hasn’t kept track of the number of concussions per year, then it’s time for the university to hire competent athletic department administrators who will.

We rate this: not protected by FERPA at all.