FERPA is a hassle. Schools constantly misuse it. Student journalists are consistently frustrated by it. So we spoke to four current and former student journalists about how they fought their school on FERPA misuse, and how you can too.
Transcript:
Joe Severino: When student journalists want to dig deeper into what’s happening behind the scenes at their school, they file open records requests. When records are withheld or turned over heavily redacted, there’s a good chance it’s because of the Family Educational Records and Privacy Act, or FERPA.
Hi, my name is Joe Severino, and you’re listening to the Student Press Law Center podcast. The SPLC is the nation’s only nonprofit legal organization devoted exclusively to defending the free press rights of high school and college journalists and their advisers across the country.
Today, we’re going to talk about FERPA — how schools have misused it, and how student journalists have fought back.
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JS: I’m here with Sommer Ingram Dean, our Staff Attorney here at the SPLC. So Sommer, what exactly is FERPA and why is it so hard to define what it protects?
Sommer Ingram Dean: So FERPA was originally enacted to protect students’ education records. That means things like their grades, their disciplinary records, your academic standing, GPA, anything like that. And it was supposed to keep institutions from being able to release that information without your permission or in some cases without your parent’s permission.
SID: Over the years, however, the definition of education records has become something that’s more loosely defined and schools use it to prevent student journalists from reporting on any events that happen at the school that school officials don’t want to get out to the public. So that could be anything from a fight happening on campus, fraternity hazing incidents, sexual assault reports, anything like that.”
JS: The ways schools use FERPA is a consistent headache for student journalists. But luckily, FERPA has limits, and there are ways to push back if the law is misused. We spoke to a few student journalists who’ve challenged their schools on FERPA misuse before, and they gave advice for how you can too.
First, let’s take a look at a FERPA battle currently taking place between the University of Kansas and its student newspaper, the Daily Kansan.
Twice over the past two years, Kansan reporters have requested records relating to hazing investigations into fraternities at KU.
The newspaper was given the documents, but they came with significant redactions. The most important details, including why KU started investigating a fraternity in the first place, were hidden.
Nicole Asbury, the Kansan’s current investigations editor, pushed back. She was pretty sure FERPA was being misapplied.
Nicole Asbury: I actually sent an email to the open records custodian just detailing that I was challenging the exemptions. Because redacting an entire factual narrative of what happened we didn’t think was required by FERPA, or at least I didn’t think so.
JS: The redactions hid the reasons why KU started an investigation in the first place. FERPA protects any information that would identify a student in these records, but it doesn’t protect the details of why KU began an investigation or what actually got a fraternity suspended, which was what Asbury argued to the open records custodian.
She also dug into KU’s previous hazing reports and found that in the past, the university had been far more transparent in disclosing hazing investigation details.
NA: “In 2010, KU had released nearly the full results of this investigation into the fraternity Phi Gamma Delta, known as FIJI. Then, the university had only redacted the names of the fraternity members into that hazing investigation.”
JS: The Kansan is still pressing the university to get those redactions removed. If your school is withholding information that you believe should be public, Asbury’s advice is don’t be afraid to question them.
NA: “It’s completely in a journalist’s prerogative to challenge any redaction that they think is unfounded, and it’s completely within that journalist’s prerogative, even more so, to request that information in the first place. The job that you’re doing is consistently within the public’s interest and you have to think of it in that realm. So I think a lot of people get hesitant or nervous particularly because we’re such young reporters to challenge those things, but just remember in particular, it’s your right to do so, and it’s also your responsibility as someone who delivers information to the public to do that.”
JS: Asbury also looked at how schools like the University of Florida and Lehigh University handled similar FERPA cases. She said it bolsters your argument if other schools have disclosed information similar to what your school is trying to keep secret.
NA: “I think the most important thing beyond that is make sure that you’re reading their exemptions and understanding their positions on certain things, and also study up on how other universities have done it in the past to see what’s inconsistent with how those universities use FERPA to redact certain documents compared to yours.”
–Transition–
JS: Edward Sutelan was editor-in-chief of the Lantern, Ohio State University’s student newspaper, during the 2018-19 school year. In September 2018, he requested records involving a number of football players over the previous six years.
Three months later, Ohio State finally gave the records to Sutelan. But a fair amount of police reports had information redacted, including the name of the football player identified in one specific report that caught his eye.
Sutelan had a hunch the name behind the black ink was former Buckeye running back Brian Snead, who was dismissed from the team around the time this police report was filed.
Edward Sutelan: “They never ended up giving an explanation for why this running back, Brian Snead, ended up leaving the university or why he was suspended. It was just sort of known Ohio State wasn’t going to explain why.”
JS: Sutelan asked Ohio State for an unredacted copy of the report he believed was Snead’s, but the school refused.
ES: “Ohio State argued that the reason that the names were redacted was because it was an uncharged suspect and these were investigative documents. My response back was that this was an initial police report and that according to Ohio sunshine laws, that it is illegal to redact the names of even uncharged suspects in an initial incident report.”
JS: Sutelan’s case is a little different. Ohio State never cited FERPA as a reason to deny him, but the university’s argument is essentially the same. Ohio State believed privacy laws protected the names of students if they weren’t charged with a crime. But under Ohio’s public records law, that’s false.
So Sutelan took OSU to the Ohio Court of Claims after failing to receive an unredacted copy. He was confident he could win because earlier he had asked local police for a similar report, and it was provided with zero redactions.
ES: I went to the Columbus Division of Police and requested a similar incident of an accused rape case where a suspect was uncharged, and all of that information was provided in there completely unredacted even though the suspect had not been charged with the crime and the case was closed.
JS: The court of claims eventually ruled in Sutelan’s favor; Ohio State had violated public records law by withholding the names in the police reports. And when Sutelan received the unredacted reports, he confirmed Snead was the name behind the redaction.
States like Ohio give student journalists more affordable ways to fight unnecessary redactions. Sutelan paid just $25 to file an initial complaint.
ES: It’s always important for us as journalists to be as read-up on open records law in the state as you possibly can. It varies from state to state, there’s a lot that can obviously change, and so for someone who has primarily dealt with Ohio, I know that Ohio gives you avenues to be able to challenge your university when given the chance. They allow you to go to the court of claims and make sure that you can hold your university accountable and get sort of an additional perspective on it.
JS: If you have any legal questions and want to talk to the SPLC for help, there’s a good chance you’ll speak with Mike Hiestand, SPLC’s Senior Legal Counsel, who wants you to never hesitate to reach out.
Mike Hiestand: “We encourage everyone if you have more questions about FERPA or any sort of media law questions to reach out to us at SPLC.org. You can set up a telephone call or send us an email and we’d be happy to help.
JS: Also on SPLC’s website, we have an FOI request template to help you write your records requests and a complaint template if your request is rejected. All of our services are always free.
–Transition–
JS: Challenging your school on FERPA misuse isn’t always easy. The Daily Tar Heel has been in a three-year legal battle with the University of North Carolina over access to sexual assault records.
Jane Wester, editor-in-chief of the Daily Tar Heel during the 2016-17 school year, took UNC to court over the school’s misuse of FERPA. The reason? It had been two years since the school passed a new sexual assault policy that changed the ajudication process for students, so the newspaper wanted to know how the process was working for victims so far.
Unfortunately, they were flat-out denied the records.
Jane Wester: We started asking those questions, and you know, they publish annual reports, but they just weren’t nearly specific enough to really get anything out of it. So we were probing them for, you know, more and more details, just in terms of ‘are you penalizing anyone, how is the process going? And we really weren’t getting it, and I think this would be multiple records requests that were failing or not getting the information we wanted at all, which led us to file the same request in October 2016 which we wrote with a lawyer’s help and with a deadline on it and with the intent to sue if they didn’t follow through.
JS: UNC denied the Daily Tar Heel’s final request to turn over the records. So, Wester and the newspaper sued their university.
The state Court of Appeals ruled UNC had to turn over the documents. Then the case went to the Supreme Court, where it’s still being deliberated.
UNC’s defense in court centered around FERPA. It claimed that student misconduct records, even if they’re related to sexual assault, are education records. The Daily Tar Heel’s lawyers asked why UNC would conceal the names of people who committed sexual offenses.
It’s important to remember that most school administrators are not experts on FERPA or public records law, something Hiestand often finds when looking into these cases.
MH: One of the problems is that schools very often just — they forget to pay attention to some of the limitations on FERPA and they just overregulate out of a sense of caution, or sometimes just out of the sense that ‘you know, we can do it, this is just an excuse that we can rely on.’ I mean FEPRA has really become, at some schools, just kind of this all-purpose excuse for denying access to records that you don’t want to provide access to and then just let student media or whoever is looking for the records fight it out.
Wester said you can fight misuse of either by just doing your homework.
JW: I mean, whether it’s FERPA or a state public records law or anything like that, I would say just know the law and keep pushing, and ask for them to show you the exact line or quote that they’re using when they deny you, and a lot of times they can’t do it.
–Transition–
JS: Marjorie Kirk, editor-in-chief of the Kentucky Kernel during the 2016-17 school year, found herself in a situation similar to Wester’s. The University of Kentucky denied the paper documents related to a sexual misconduct investigation into a professor.
UK claimed FERPA protected the records, because the two women who accused him were students.
Kirk said in a 2017 SPLC podcast that the Kernel kept pursuing the records because UK had a bad track record of not protecting sexual assault victims. A representative for two female students who accused the professor approached Kirk and asked the paper to further investigate their situation, because they believed the school botched their investigation.
But the story went further than that.
Marjorie Kirk: When they told me their story, I had originally thought this would be a one-and-done case of one group of women’s issue with a professor. But when we started trying to pursue the investigative report and related documents from the university, we began to see that this story is about much more than one sexual harassment and assault case. It revealed a system and what I’ve begun to call — not call but think of as almost as a playbook the university’s had for covering up their sexual assault and harassment investigations.
JS: The Kernel then asked the state’s then Attorney General Andy Beshear to step in. Under public records law, the attorney general had the right to review the records the paper was seeking.
Beshear ruled that UK had violated state open records law by denying the Kernel’s request and ordered the documents to be released. Beshear’s ruling would’ve also required UK to turn over any similar documents in the future.
MK: How open records law in Kentucky works is that if one party disagrees with the attorney general, they have to sue the party that came to the attorney general in the first place, and in this case that’s us, the student newspaper.
JS: During the litigation process, UK’s president accused the Kernel of publishing sexual assault stories just to gain attention and also blamed the paper for being the reason sexual assault complaints declined on campus. Kirk said those claims were wildly untrue, and that the Kernel was only working to tell victims’ stories because the university just wasn’t doing its job.
MK: I appreciate that I can give them some kind of service here by letting them tell their story, and the fact that the president of the university is now trying to skew that to make it seem like I’m here to publish is disappointing, and it shows that he has no understanding of what journalism is all about. My duty is to seek the truth and report it and to minimize harm.
JS: The Kentucky Court of Appeals eventually ruled in May 2019 that UK had violated the state’s open records laws by denying the Kernel the requested records.
The Kernel received the 2016 College Press Freedom Award from the SPLC for the paper’s defiant pursuit of the truth. In her acceptance speech, Kirk said that even in the face of immense pressure, it’s your job to keep pushing forward.
MK: Honestly, if you’re good at this, you’re going to be in the same position we were. Someone’s going to challenge you, someone’s going to tell you to shut up and ignore these issues, and you’ve got to stand up because as the President puts it, you’re the enemy of the American people. Really, you’re the enemy of misinformation and manipulation, and so I just want to encourage all of you to never compromise your integrity, to continue to be empathetic and just be genuine, and it’ll spur on great journalism.
JS: There’s a clear lesson from this podcast: student privacy laws in the United States are largely left up to interpretation by administrators. But these four journalists showed us you don’t have to settle for what your school decides is the law. If you think your school is misusing FERPA or other privacy laws, just remember, don’t be afraid to fight back. If you do your homework and study your state’s public records law, then there’s a good chance you know much more than the administrator withholding the information does. And if you need help, reach out to the Student Press Law Center. Our attorneys, Mike and Sommer, are experts on FERPA and access issues. You don’t have to fight alone!
–Transition–
I’d like to thank journalists Nicole Asbury, Edward Sutelan, Jane Wester and Marjorie Kirk for telling us their stories. I’d also like to thank our outstanding attorneys Mike Hiestand and Sommer Ingram Dean. If you’re ever facing legal trouble, go to our website, splc.org, and schedule a call with one of our attorneys. Follow the Student Press Law Center on Twitter, Facebook and Instagram. The music you heard on today’s podcast was produced by DJ Williams.
SPLC reporter Joe Severino can be reached by email at jseverino@splc.org or by calling 202-974-6318. Follow him on Twitter at @jj_severino.
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