Employment records
If a student has a job with the school, then routine employment records kept in the institution’s normal course of business are excluded by statute from FERPA. If state open-records law allows access to employment records (salary information, personnel evaluations, and so on), FERPA cannot be used to deny access to the records just because the employee happens to be taking classes. However, if the job is a work-study job open only to students, then employment-related records may be covered by FERPA.
Disciplinary records
Although courts have reached a number of conflicting conclusions on the issue, student disciplinary records are largely considered confidential under FERPA.
During the 1990s, state courts in Ohio and Georgia ruled that documents related to student disciplinary infractions were outside the scope of FERPA because they were not “educational” in nature. The North Carolina Supreme Court, however, reached a contrary result in a suit brought by that school’s student newspaper, The Daily Tar Heel.
The Department of Education has forcefully defended the privacy of student disciplinary records, and in 1998 obtained a permanent injunction that blocked two Ohio universities from complying with open-records requests for student disciplinary records. The Sixth Circuit agreed with the Department’s interpretation that FERPA protects all “personally identifiable information contained in student disciplinary records.”
However, Congress amended FERPA in 1998 to specify that certain disciplinary outcomes are excluded from FERPA—specifically, crimes of violence or non-forcible sex offenses. A 2017 North Carolina case expanded this idea further, ruling that FERPA permits a school to disclose “the final results of any disciplinary proceeding . . . if the institution determines as a result of that disciplinary proceeding that the student committed a violation of the institution’s rules or policies with respect to such crime or offense.” However, the court was careful to note that “FERPA only authorizes the disclosure of ‘the name of the student, the violation committed, and any sanction imposed by the institution on that student.”
Sexual Assault and Campus Crime
Universities and other schools have avidly used FERPA to deny the disclosure of information about sexual assaults perpetrated by or against students. In a 2014 survey of 110 campuses conducted by the Student Press Law Center and the Columbus Dispatch, twenty-two schools refused to disclose basic campus crime information under FERPA, even though the requested information was explicitly exempt on the face of the law. In 2016, the University of Kentucky went even further, bringing a suit against the school’s independent newspaper, the Kentucky Kernel, to prevent the release of records related to an investigation of sexual assaults on campus.
However, FERPA expressly exempts and does not prohibit disclosure of the final results of disciplinary proceedings against students who committed serious crimes, including sex crimes and crimes of violence. In 2017, the University of North Carolina at Chapel Hill denied a request for the records of persons who had been found responsible sexual misconduct by the university, claiming that even though the documents were exempted from FERPA, the university still had sole discretion on whether to release the documents. The Court of Appeals for North Carolina clarified that FERPA does not give the university discretion on whether to release public information that is otherwise subject to open record laws, and that FERPA cannot be interpreted to preempt state open record laws. (Although the court was careful to note that “FERPA only authorizes disclosure of ‘the name of the student, the violation committed, and any sanction imposed by the institution on that student’ from the general rule of non-disclosure of disciplinary records.”
Death
Schools can also freely release information about students over 18 after their deaths, since the right of privacy does not survive an individual’s death. (The Department of Education has left some ambiguity with regard to a child who dies before reaching 18. Since the right to bring an invasion-of-privacy claim belongs to a child’s parents until the child turns 18, the Department may take the position that the FERPA privacy right remains with the parents even after the death of a minor child.)
Parking Tickets and Vehicle Records
Parking tickets and vehicle records are generally not protected under FERPA, but have also been treated inconsistently in the courts. In Kirwan v. The Diamondback, the Maryland Court of Appeals directly addressed – and rejected – the argument that FERPA prohibited a college from releasing copies of students’ parking tickets. The case was brought by the University of Maryland student newspaper, whose reporters had been tipped off that athletes and coaches were being granted special forgiveness for parking violations. The court stated that FERPA was “obviously intended to keep private those aspects of a student’s educational life that relate to academic matters,” and therefore did not cover parking tickets.
Similarly, a North Carolina state court ordered the release of records regarding parking tickets issued to student athletes at the University of North Carolina-Chapel Hill, rejecting UNC’s argument that the tickets were “education records” just because disciplinary sanctions were among possible punishments. The court also ordered disclosure of coaches’ cell-phone records, finding that the phone numbers of student athletes also are not “education records.”
However, a Michigan appeals court ruled in 1998 that a student-athlete’s vehicle registration form filed with the University of Michigan was covered by FERPA, because the document “directly related to a university student and is maintained by the university in its files.” Similarly, in 2012, Oklahoma University’s student newspaper The Daily, submitted a request to Oklahoma University for student parking citation records to determine whether particular groups of students were receiving different treatment from the parking office. Oklahoma University refused to release records in connection with student names, citing FERPA as a justification for withholding the information. The school’s decision was not challenged in court..
Settlements and Litigation Documents
Information about a lawsuit or settlement agreement cannot be withheld solely because a student is involved in the case. The clearest cases are those in which students play only a tangential role, such as being referenced in a legal proceeding that concerns current or former school employees.
For instance, in Herald Publishing Company v. Coopersville Area Public Schools, the Grand Rapids Press newspaper requested information about two settlement agreements involving alleged misconduct by school employees. The school system refused, arguing that FERPA exempts it from having to disclose how much money was paid to settle the suits. A Michigan court disagreed, holding that even though students may have been victims or witnesses, the suit “clearly involves the actions of the employees of a public body at work and that public body’s expenditures.” Therefore, the information sought by the newspaper was not an education record as defined by FERPA. Federal courts in Michigan and Ohio have ruled similarly.
Even where students (or their families) are participants in litigation, documents relating to the litigation cannot be withheld on the grounds of FERPA, although student information that identifies students can sometimes legitimately be redacted. In Poway Unified School District v. Superior Court (Copley Press), the San Diego Union-Tribune requested access to documents filed with a local school district placing the district on notice of an impending lawsuit arising out of a hazing incident. The school district refused to supply the records, relying in part on a California law that implements FERPA. A district court ordered the records released (with only the names of students redacted), and the California Court of Appeals affirmed. The appeals court found no privacy interest in litigation documents, since court proceedings are a matter of public record, and stated that “[i]t defies logic and common sense” to define a party’s demand for payment as an education record.
In Jennings v. University of North Carolina at Chapel Hill, a former student sued the University of North Carolina and its employees, alleging sexual harassment while she was a member of the soccer team. The defendants moved to seal the depositions of the student and her parents, asserting that the depositions could be embarrassing to other former students because they contained information about “their private lives or bodies.” The defendants argued that the students’ privacy interests were heightened by FERPA because they attended a federally funded university at the time the alleged comments were made. A U.S. district court in North Carolina rejected that argument, holding that the existence of FERPA did not heighten the students’ privacy interests because “[t]he information at issue in the depositions is not an ‘educational record’ as defined by FERPA, nor is it the type of information that would be on a FERPA-protected educational record.”
Despite the weight of legal authority, the Department of Education muddied the picture with its 2009 FERPA rules changes. As part of those changes, the Department advised that FERPA can apply to records pertaining to alumni as well as current students. In illustrating that point, the Department gave as an example of the type of alumni record that would be confidential: “a settlement agreement that concerns matters that arose while the individual was in attendance as a student.” No explanation of “settlement agreement” was provided. At least one state agency has already found the Department’s guidance confusing.
In a 2010 ruling, the Mississippi Ethics Commission dealt with a dispute between the Hattiesburg American and the University of Southern Mississippi over records relating to the termination of an assistant tennis coach, who also was a university graduate student. A university attorney asserted that all records responsive to the newspaper’s request, including the agreement resolving the coach’s employment lawsuit, were “education records” under FERPA. The Ethics Commission ruled that in light of the Department’s position on the confidentiality of former students’ settlement agreements, Southern Miss did not violate the law by withholding the records. However, the Commission sharply questioned the DOE’s position to include former student employees in the class of persons protected by FERPA, noting that “such a broad interpretation of FERPA frustrates the purpose of state and federal open records laws.”
Reports of Employee Misconduct
A clear majority of courts have ruled that reports involving misconduct by school or college employees do not fall within FERPA, even if students are mentioned as victims or as complainants. FERPA covers only records “directly related to” a student, and an investigation of employee misconduct does not “directly” relate to any particular student. Therefore, even the student names in such records can be disclosed.
A federal district court in Ohio, for instance, ruled that records identifying students involved in altercations with substitute teachers were not protected: “While these records clearly involve students as alleged victims and witnesses, the records themselves are directly related to the activities and behaviors of the teachers themselves and are therefore not governed by FERPA.”
A federal district court in Michigan reached the same conclusion, finding that “student statements provided in relation to an investigation into a school employee’s alleged misconduct” were not education records (and thus did not need to be redacted) because they did not directly relate to students.
However, in a 2003 ruling, an Indiana appeals court held that FERPA required the redaction of any personally identifiable information about students in records of a university investigation into allegations that an employee, Indiana basketball coach Bobby Knight, mistreated student athletes. Given the weight of contrary precedent, the Indiana Newspapers case appears unlikely to be followed by courts outside of Indiana.
Psychological Tests
A few courts have specifically held that documents related to the psychological evaluation of a student are education records under FERPA. In John K. v. Board of Education, parents sought access to their daughter’s responses to an ink-blot test administered by a school district psychologist in Illinois. The school system argued that the student’s responses were not education records, but rather materials maintained by the psychologist for her exclusive use. The Appellate Court of Illinois disagreed, explaining that the raw data should properly be classified as a test result and holding that a student’s responses to such tests were “patently included within the education record” as defined by FERPA.
Photos and Videos
Like any other written record, a photograph of video can become part of a student’s education record if it directly relates to the student and is maintained by the school. The Department of Education offers a FAQ guide on this subject, noting that a photo or video is likely directly related to a student if:
- The school uses the photo/video in a file for disciplinary action (including for the victim of the incident)
- The photo/video depicts an activity that:
- Shows a student in violation of local, state, or federal law
- Shows a student getting injured, attacked, victimized, ill, or having a health emergency
- The person (or entity) taking the photo/video intends to make the student the focus of the photo/video
- The content of the photo/video otherwise depicts personally identifiable information contained in a student’s education record
The FAQ notes that if a student’s image is merely incidental to a photo/video (i.e. the student is in the background of an activity like a basketball game), that student is not considered the focus of the photo/video under FERPA For example, it is the Department’s opinion that a surveillance video of two students fighting can fall under FERPA if it is used as part of a disciplinary action. Similarly, a video of a student having a seizure or the recording of a faculty meeting in which grades are discussed both fall under FERPA, according to the FAQ.
A school must provide parents and eligible students an opportunity to inspect any photos or videos that are part of that student’s education record, and the school must reasonably redact portions of the video directly related to other students without destroying the meaning of the record. If such redaction cannot be accomplished, only the students (and parents) to whom the video directly relates have a right to access it.
Title IX
Records of Title IX investigations can be notoriously difficult to acquire, and the legal standards surrounding them offer little clear guidance. Information on Title IX accusations, investigations, and even violations can be protected by a variety of privacy laws—including FERPA—much to the frustration of student journalists.
FERPA is often used as an excuse to deny access to information regarding Title IX investigations. However, as with any education record, FERPA only applies to student information—not teachers or other school employees—so if the school can redact the student information without destroying the record, in most cases the school must do so. A smart approach for drafting requests for Title IX documents is to clarify that you want all identifying student information redacted from the document, however schools have still denied even these requests, arguing the information could be linked to a student even with names and other information redacted.
Unfortunately for journalists, FERPA may not be the only potential obstacle to Title IX disclosure. Many state privacy laws also prevent the disclosure of information in employee files, meaning that Title IX investigations or accusations against school employees could be kept private. Depending on the state, a completed disciplinary proceeding against an employee is often considered public information subject to disclosure, but incomplete or on-going investigations are considered private. There may also be other conditions related to disclosure. In California, for example, disciplinary investigations into a public employee are subject to disclosure when they are (1) complete and (2) “reveal allegations of a substantial nature, as distinct from baseless or trivial, and there is reasonable cause to believe the complaint is well-founded . . . .” That being said, many state disclosure laws also include a general privacy provision that allows an agency to disclose even private records if the public benefit of disclosing the information outweighs the harm to a person’s privacy. Cases finding evidence of sexual harassment or assault (such as those in the “#MeToo” category) by an employee are generally considered newsworthy and schools therefore might have some discretion in releasing information about Title IX investigations, including the option to redact employee information from the document.
If a request is denied, the decision can be appealed to a court or or other designated authority. Check your state access to information laws for more information.
In addition to the more detailed investigatory records being held by individual schools, you can confirm the existence of an official investigation through the US Department of Education, which is federal agency responsible for Title IX enforcement. Once a Title IX allegation is filed with the U.S. Department of Education and a cursory review by DOE determines that further investigation is warranted, the Department will add the school to it’s online database of “Pending Cases,” which is public and searchable. (For Title IX cases, click on the “Sex Discrimination” tab.) **