In the absence of clear guidance from Congress or the Department of Education, abuses of FERPA have exploded, and the Department of Education has been largely dismissive of concerns regarding the broad interpretation. The Department has dismissively noted that “FERPA is not an open records statute or part of an open records system . . . [so] Journalists, researchers, and other members of the public have no right under FERPA to gain access to education records for school accountability or other matters of public interest, including misconduct by those running for public office.” It has unfortunately become routine for some schools and colleges to cry “FERPA” in response to virtually any open-records request, putting requesters in the position of having to wage a costly, time-consuming public-records lawsuit to get answers.
In a 2014 survey of 110 college campuses conducted by the Student Press Law Center and the Columbus Dispatch, twenty-two schools cited FERPA in a refusal to disclose basic campus crime information, even though the requested information was explicitly exempt on the face of the law. Some student newspapers, like The UWM Post at the University of Wisconsin-Milwaukee, were denied access to records so many times that they were forced to file suit. Among the records that UWM claimed were confidential student records were: audio recordings and transcripts of a public committee meeting in which student committee members participated and student audience members spoke; the names of college employees who sat on campus disciplinary boards; and audit documents alleging misuse of state travel money, including some trips taken by student leaders.
In other cases, some schools have taken legal action against school newspapers to prevent the disclosure of certain documents. In 2010, Laramie County Community College in Wyoming briefly convinced a state-court judge to issue a near-unprecedented order restraining the Wyoming Tribune Eagle from publishing a report about a negligent conduct allegation against the college’s president even though the newspaper had agreed to remove student names before publication. The judge belatedly realized that FERPA only applies to the school’s disclosure of information, not the newspapers’. Similarly, in 2017, the University of Kentucky threatened legal action against its own student newspaper to prevent sexual assault reporting.
Perhaps the most egregious misapplication of FERPA came to light as a result of a student rape victim’s complaint to the advocacy group Security on Campus, Inc (“SOC”). The University of Virginia student was forced to sign a confidentiality agreement promising – under threat of disciplinary action – never to discuss her case with anyone if she wanted UVA’s disciplinary panel to investigate her rape complaint. The university insisted that the form was necessary to comply with FERPA. SOC learned that similar “gag order” agreements were used at Georgetown University, the University of Central Florida, and elsewhere. In November 2008, after a complaint from SOC, the Department of Education issued a ruling condemning the practice. The Department’s January 2009 rule changes make clear that such “gag orders” are unlawful.
In an award-winning 2009 investigative series, reporters Jill Riepenhoff and Todd Jones of the Columbus Dispatch documented the misuse of FERPA by college athletic departments to withhold records that fall well outside the Senate sponsors’ definition of records “used by the institution in making decisions that affect the life of the student.” The reporters encountered dozens of instances in which public universities refused to release – or released only in heavily redacted form – such documents as the passenger lists of football team flights, recipients of complementary football tickets, and correspondence with the NCAA regarding potential compliance violations.
The long history of well-documented excesses has led to calls for FERPA reform. Following the Columbus Dispatch series, U.S. Sen. Sherrod Brown, D-Ohio, wrote to the Department of Education urging the agency to issue rules clarifying and narrowing the scope of FERPA secrecy. “It is important that the public have confidence in the integrity of our higher education system, which requires a measure of transparency in reporting violations of the rules,” Brown wrote.
In March 2018, President Trump announced that his proposed school security plan included a review of FERPA to “determine if any changes or clarifications are needed to improve coordination between mental health and other healthcare professionals, school officials, and law enforcement personnel.” As of July 2018, there is no word yet as to how this review will affect FERPA.