Be Careful What You Wish For: The Public Records Assault on FERPA

Be Careful What You Wish For:The Public Records Assault on FERPA Steven J. McDonaldGeneral CounselRhode Island School of Design

We don't need no education • "Congress enacted the Family Educational Rights and Privacy Act, or FERPA, in 1974 to safeguard the confidentiality of student 'educational records.' But today colleges are abusing FERPA and denying information requests with no conceivable privacy interest – applying a limitless definition of 'educational record' well beyond what FERPA's sponsors intended . . . ." • Frank D. LoMonte, Executive Director, Student Press Law Center

Upside down, boy you turn me, inside out, and round and round • "[T]he Education Department should act with regard for the overwhelming mandate of state legislatures that – absent a compelling justification for secrecy – government records are to be open for public inspection."

Upside down, boy you turn me, inside out, and round and round • "[T]he Education Department should act with regard for the overwhelming mandate of state legislatures that – absent a compelling justification for secrecy – government records are to be open for public inspection." • Butsee U.S. Constitution, Article VI, Clause 2 ("This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; . . . shall be the supreme Law of the Land; . . . any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.")

FERPA • The Family Educational Rights and Privacy Act of 1974 • A.K.A. the Buckley Amendment

FERPA's big three • College students have the right, in general, to: • Control the disclosure of their "education records" to others • Inspect and review their "education records" • Seek amendment of their "education records"

So, what's an "education record"?

So, what's an "education record"? "[O]fficial records, files, and data directly related to [students], including all material that is incorporated into each student's cumulative record folder, and intended for school use or to be available to parties outside the school or school system, and specifically including, but not necessarily limited to, identifying data, academic work completed, level of achievement (grades, standardized achievement test scores), attendance data, scores on standardized intelligence, aptitude, and psychological tests, interest inventory results, health data, family background information, teacher or counselor ratings and observations, and verified reports of serious or recurrent behavior patterns."

So, what's an "education record"? • "'Education records' . . . means those records that are: (1) Directly related to a student; and (2) Maintained by an educational agency or institution or by a party acting for the agency or institution"

So, what's an "education record"? • In general, a record is "directly related" to a student if it contains "personally identifiable information" about that student

So, what's an "education record"? • "'Personally identifiable information' includes, but is not limited to" • The name of the student or of the student's parent or other family member • The address of the student or student's family • Personal identifiers such as SSNs, student numbers, or biometric records • Other indirect identifiers such as date or place of birth or mother's maiden name

So, what's an "education record"? • "Other information that, alone or in combination, is linked or linkable to a specific student that would allow a reasonable person in the school community, who does not have personal knowledge of the relevant circumstances, to identify the student with reasonable certainty" • "Information requested by a person who the educational . . . institution reasonably believes knows the identity of the student to whom the education record relates"

So, what's an "education record"? • "Maintain" is not defined • Owasso Independent School District v. Falvo, 534 U.S. 426 (2002): • "FERPA implies that education records are institutional records kept by a single central custodian, such as a registrar." • But: "The ordinary meaning of the word 'maintain' is 'to keep in existence or continuance; preserve; retain.'"

Wedon't need no "education" • "Education records" certainly includes transcripts, exams, papers, and the like • But it also includes virtually everything else, regardless of where located: • Advising records • Financial aid and account records • Disability accommodation records • Discipline records • Athletic records • Photographs • E-mail messages • "Unofficial" files • With just six narrow exceptions • There's no such thing as an "educational record"

Questions(and maybe answers)

Full-court press • Redefining the terms • "Education(al)" records • "Directly related" • "Maintained" • Importing FOIA's privacy v. public interest balance • FERPA doesn't prohibit the release of anything

Courting disaster • "[University Disciplinary Board] records . . . do not contain educationally related information, such as grades or other academic data, and are unrelated to academic performance, financial aid, or scholastic performance. Consequently, we . . . hold that university disciplinary records are not 'education records' as defined in FERPA." • The Miami Student v. Miami University

The greater (is) good • Records pertaining to an NCAA investigation into academic misconduct are "not 'education records' because those documents do not contain information directly relating to a student. Instead those documents focus primarily on the actions of FSU with respect to alleged academic fraud and the alleged failure of FSU to monitor its employees." • AP v. Florida State University

Raiders of the lost archives • "We agree with the Supreme Court that the statute was directed at institutional records maintained in the normal course of business by a single, central custodian of the school. . . . . The Davis report, however, does not fall within that group. True, it identifies students by name and details acts taken by them and against them, some of which violated school policy and subjected them to discipline. However, the report was not directly related to the private educational interests of the student. Its purpose was to investigate complaints of malfeasance allegedly committed by the highest administrator in the District. . . . It also was not the type of report regularly maintained in a central location along with education records such as those described above in separate files for each student." • BRV, Inc. v. Superior Court

Balance of power • "Even without FERPA, there are safeguards in place to deter the release and publication of non-newsworthy information about private individuals. Every state open-records act excludes certain categories of records from disclosure because legislators have decided there is no overriding public interest in the information. . . . And almost every state open-records act incorporates a discretionary balancing test that enables an agency to refuse a request for records if disclosure would constitute an unwarranted invasion of individual privacy." • SPLC White Paper

The $520,512,566 question • "Section 7(1)(a) of FOIA applies only when a federal or state law 'specifically prohibit[s]' a certain disclosure. . . . But FERPA, enacted pursuant to Congress' power under the Spending Clause, does not forbid Illinois officials from taking any action. Rather, FERPA sets conditions on the receipt of federal funds, and it imposes requirements on the Secretary of Education to enforce the spending conditions by withholding funds in appropriate situations. . . . Illinois could choose to reject federal education money, and the conditions of FERPA along with it, so it cannot be said that FERPA prevents Illinois from doing anything." • Chicago Tribune Co. v. University of Illinois

The empire strikes back • "Federal grants authorized by Congress create binding contracts between the United States and the recipient . . . . Accordingly, acceptance of a federal grant to which conditions are attached 'creates an obligation to perform the conditions on the part of the recipient.'" • "If Congress had left the term 'education records' undefined, it is plausible that one might interpret its ordinary meaning to refer only to academic or other educationally-related information. However, Congress provided a very clear and broad definition of 'education records' in the statute. Therefore, it is the plain language of Congress' definition that the Court must interpret, not the term itself." • United States v. Miami University

Relatively speaking • "Rhea contends that the e-mail at issue does not directly relate to its student author, and for this reason is not an 'education record' within the meaning of FERPA. . . . Like the courts in Ellis and Wallace, we believe the plain language of FERPA supports the distinction between information that is directly related to a student and that which is related to a student only tangentially or indirectly. By including the qualifier 'directly' before 'related,' Congress excluded by inference any information relating only indirectly to a student from the purview of the information covered under the 'education records' definition." • Rhea v. Santa Fe College

Relatively speaking • "The scope of the words 'directly related' is still, however, quite broad. But to the extent that Ellis converts the 'directly related' inquiry into a "primarily related" test, we disagree with its approach . . . . We reject any suggestion advanced by Rhea that a record cannot relate directly both to a student and to a teacher. If a record contains information directly related to a student, then it is irrelevant under the plain language in FERPA that the record may also contain information directly related to a teacher or another person." • Rhea v. Santa Fe College

Maintain no fiction • "ESPN's next claim, that the requested records do not constitute 'education records' under FERPA because they are not 'maintained by an educational agency or institution or by a person acting for such agency or institution,' also lacks merit. . . . Ohio State's Department of Athletics retains copies of all emails and attachments sent to or by any person in the department; the e-mails cannot be deleted. The department also retains copies of all documents scanned into electronic records, which are organized by student-athlete. Ohio State has additionally collected documents related to its investigation of student-athletes . . . that were requested by the NCAA and has kept those documents in two secure electronic files." • ESPN v. The Ohio State University

It's not academic • Personal information submitted in an admissions essay?

It's not academic • Personal information submitted in an admissions essay? • A tax return submitted for financial aid purposes? • A disability accommodation request? • A disciplinary file concerning underage drinking? • A student's complaint of alleged sexual assault? • The "card swipe" records of a student's comings and goings around campus? • The list of stores and restaurants a student visited, and the purchases made, with a "one card"?

Ends and means • Under either a "more directly related" or a public interest/privacy balancing test, every decision would be subjective • And every decision would therefore be subject to litigation • Results could be result-oriented • Training of front-line staff would be impossible • Under a "no prohibition" approach, all records about students would be public record absent a specific exception for the specific type of record in the specific situation • The news media might not cross the line – but somebody would

Sorry, wrong number • "[The] argument that Ohio public policy favors openness and disclosure . . . has no bearing on the Court's interpretation of FERPA. . . . [T]hose arguments are directed to the wrong branch of government. The Court's duty is to discern Congress' intent regarding FERPA by applying sound principles of statutory interpretation. It would be a gross violation of the constitutional principle of separation of powers for the Court to act as a super-legislature and decide what it thinks the law should be based on contemporary public policy interests." – United States v. Miami University

It's not (really) about FERPA • It's about public records statutes • (And mostly student athletes and students active in student government) • Getting there by redefining FERPA would not require private institutions to disclose anything, and they would not be likely to do so • Rather, it would, in effect, simply penalize students for choosing public education by depriving them of the privacy that their private school peers enjoy

Be Careful What You Wish For: The Public Records Assault on FERPA