Hiding Behind Ivory Towers: Penalizing Schools
That Improperly Invoke Student Privacy To
Suppress Open Records Requests
ROB SILVERBLATT*
TABLE OF CONTENTS
INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
494
I. GENERAL PRINCIPLES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
496
A.
FERPA: AN INTRODUCTION
...........................
496
B.
OPEN RECORDS LAWS AND THE SEARCH FOR TRANSPARENCY
....
498
C.
FERPA AND OPEN RECORDS LAWS: A COLLISION COURSE
.......
500
II. ABUSES OF FERPA: ORIGINS AND COSTS . . . . . . . . . . . . . . . . . . . .
502
A.
OVERCOMPLIANCE AND INTENTIONAL FLOUTING
.............
502
B.
CASE STUDIES: THE PROBLEM IN ACTION
..................
504
Poway Unified School District v. Superior Court
(In re Copley Press, Inc.) . . . . . . . . . . . . . . . . . . . . . . .
504
Bracco v. Machen . . . . . . . . . . . . . . . . . . . . . . . . . . . .
505
..............................
506
III. THE INADEQUACY OF CURRENT PROTECTIONS . . . . . . . . . . . . . . . . .
507
1.
2.
C.
A.
EXPLORING THE COSTS
A LOOK AT HOW OPEN RECORDS LAWS CURRENTLY PUNISH
.....................................
507
....................
508
1.
Misaligned Incentives . . . . . . . . . . . . . . . . . . . . . . . . .
508
2.
The Special Problem of Student Journalists . . . . . . . . . .
510
IV. FIXING FERPA . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
511
VIOLATORS
B.
A.
THE NEED FOR SPECIAL PROTECTIONS
THE SPENDING CLAUSE: GENERAL PRINCIPLES
..............
512
* Georgetown University Law Center, J.D. expected 2013; Tufts University, B.A. 2009. © 2013,
Rob Silverblatt. Special thanks to Professor Ken Jost for his free-press seminar, which inspired this
paper. Most of all, I would like to thank my parents, Susan and Arthur Silverblatt, without whose
support none of this would have been possible.
493
494
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B.
APPLYING THE TEST
C.
CALIBRATING THE PENALTIES
D.
CHOOSING A STANDARD
[Vol. 101:493
................................
514
.........................
515
.............................
516
CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
517
INTRODUCTION
The University of North Carolina’s football team was reeling from accusations of widespread ethical lapses, and Butch Davis, the once-celebrated squad’s
coach, stood right at the center of the mounting controversy. For Davis, 2010
was a brutal year. The National Collegiate Athletic Association (NCAA) was
investigating several members of his team; one of his star players was making
national headlines for allegedly receiving improper benefits during trips to
Miami and California; and sports fans were calling for Davis’s head.1 As
accusations swirled, journalists descended onto the school’s Chapel Hill campus
looking for proof of wrongdoing.2 They sought public records, but what they
got instead was a five-letter acronym: FERPA.3
The University contended that the records requested, which included parking
tickets and Davis’s phone logs, were exempt from disclosure under the Family
Educational Rights and Privacy Act (FERPA),4 which penalizes educational
institutions that have a policy or practice of releasing “education records” to
unauthorized third parties.5 Despite convincing evidence to the contrary, the
University continued to press the position that the information sought constituted education records.6 The next year, following a suit to compel UNC to
release the records, the presiding judge chastised the university and reminded its
administrators that federal law does not allow them to cover their campus with
“an invisible cloak.”7 The judge then ordered the release of the phone logs and
the tickets.8
FERPA, the brainchild of then-Senator James Buckley, is a 1974 law with a
common-sense purpose. It was meant to keep academic information, such as
grades and transcripts, accessible to students and their parents and private from
1. See, e.g., Justin Eisenband, North Carolina Tarheels Scandal: Marvin Austin and Co. Suspended
for Entire Year, BLEACHER REP. (Oct. 11, 2010), http://bleacherreport.com/articles/488187-north-carolinascandal-austin-quinn-little-all-suspended-for-season; Terence Moore, North Carolina’s Butch Davis
Has To Go—And Now, AOL NEWS (Sept. 5, 2010, 1:40 AM), http://www.aolnews.com/2010/09/05/northcarolinas-butch-davis-has-to-go-and-now/.
2. See Sarah Frier, Lawsuit Decision Is a Call for Openness, DAILY TAR HEEL (Apr. 20, 2011, 11:27
AM), http://www.dailytarheel.com/index.php/article/2011/04/lawsuit_decision_is_a_call_for_openness.
3. Id.
4. 20 U.S.C. § 1232g (2006).
5. See Frier, supra note 2.
6. See id.
7. See News & Observer Publ’g Co. v. Baddour, No. 10-CVS-1941, slip op. at 2 (N.C. Super. Ct.
Apr. 19, 2011) (memorandum opinion).
8. Id. at 2–3.
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HIDING BEHIND IVORY TOWERS
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just about everyone else.9 Watergate had recently shaken the nation’s confidence, and privacy concerns were a top priority among legislators.10 At the
time, the proposal made perfect sense to Buckley. Now, however, as schools
have begun routinely using FERPA to deny valid requests for information, he
fears that the situation has gotten out of hand.11 “One thing I have noticed,”
Buckley told a newspaper in 2011, “is a pattern where the universities and
colleges have used [FERPA] as an excuse for not giving out any information
they didn’t want to give.”12
Every state has an open records law that makes certain information a matter
of public record and prescribes steps that journalists and ordinary citizens must
follow to request and obtain documents.13 These laws are meant to promote
openness and transparency and are considered by state governments to be
central to the proper functioning of a representative democracy.14 But over the
past several years, these open records laws have increasingly been stymied by
educational institutions that have unlawfully withheld documents, often citing
FERPA as their rationale even though the information in question bears little
resemblance to an education record.15 While FERPA arguably overrides these
laws in the case of actual education records,16 it has been invoked in almost
every imaginable context. Open records advocates have bemoaned this trend,
claiming that FERPA has been “twisted beyond recognition.”17
These complaints, however, have largely gone unheeded. This Note suggests
that the reason for this is that the status quo gives institutions strong incentives
to unlawfully deny open records requests through reliance on FERPA. Indeed, it
makes economic sense for many of these institutions to overcomply with
FERPA and undercomply with open records laws. To alleviate this problem, this
Note proposes the imposition of penalties on schools that unreasonably withhold documents in response to open records requests.
Part I sets forth an introduction to FERPA and the various open records laws
that currently exist. It explains how FERPA and open records laws interact and
provides background about the conflicts that frequently result when schools
decline to produce documents in response to requests from journalists. Part II
explores how FERPA has been abused and provides case studies illustrating the
9. See infra section I.A.
10. See generally Mary Margaret Penrose, In the Name of Watergate: Returning FERPA to Its
Original Design, 14 N.Y.U. J. LEGIS. & PUB. POL’Y 75 (2011) (discussing the background against which
FERPA was enacted).
11. It’s Clear the ‘O’ Stands for Opaque, REGISTER-GUARD (Feb. 18, 2011), http://special.registerguard.
com/csp/cms/sites/web/sports/25904339-41/records-public-ncaa-oregon-ferpa.csp.
12. Id. (internal quotation marks omitted).
13. Daxton R. “Chip” Stewart, Let the Sunshine in, or Else: An Examination of the “Teeth” of State
and Federal Open Meetings and Open Records Laws, 15 COMM. L. & POL’Y 265, 265 (2010).
14. See infra section I.B.
15. See infra Part II.
16. See infra section I.C.
17. See Reporter’s Guide to FERPA: Navigating the Family Educational Rights and Privacy Act,
SOC’Y OF PROF. JOURNALISTS, http://www.spj.org/ferpa.asp (last visited May 1, 2012).
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tension between privacy and transparency. Part III examines how open records
laws currently punish the wrongful withholding of documents and makes the
case that the available options fail to provide a reasonable check against
schools’ abuses of FERPA.
Finally, Part IV suggests that Congress amend FERPA to provide for penalties against schools that unreasonably refuse to comply with open records
requests. Specifically, this Note calls for Congress to use its power under the
Constitution’s Spending Clause18 to withhold a fixed percentage of a school’s
federal funding each time the school, without any reasonable basis in the law,
misclassifies a document as an education record in response to a valid open
records request. This is functionally a negligence standard, and it allows
institutions to escape penalties if they wrongfully, although not unreasonably,
withhold documents. The determination of the reasonableness of the withholding would be made by the Department of Education’s Family Policy Compliance Office, which is the division currently tasked with administering FERPA.
While this Note suggests leaving the precise amount of the penalties for
Congress to determine, it provides guidance that legislators should consider
when calibrating them. Ultimately, this Note contends that instituting penalties
would remedy the broken incentive structure and encourage good-faith compliance with open records laws.
I. GENERAL PRINCIPLES
On their surfaces, FERPA and open records laws have countervailing purposes. FERPA conditions educational institutions’ federal funding on their
ability to keep students’ academic records out of the hands of most third parties.
Open records laws, on the other hand, require the release of a whole host of
documents to those who request them. Where FERPA values privacy, open
records laws promote transparency. As such, it is not surprising that there has
historically been tension between the two regimes. This Part explores that
friction. Section A provides background on the goals and administration of
FERPA. Section B provides similar information about federal and state open
records laws. Section C discusses how these various provisions interact.
A. FERPA: AN INTRODUCTION
At its core, FERPA is concerned with two ideals: promoting the ability of
parents to access students’ records and maintaining the privacy of those records
vis-à-vis outsiders.19 Importantly, FERPA does not create any rights for par-
18. U.S. CONST. art. 1, § 8, cl. 1.
19. See, e.g., Ralph D. Mawdsley & Charles J. Russo, FERPA, Student Privacy and the Classroom:
What Can Be Learned from Owasso School District v. Falvo?, 171 WEST’S EDUC. L. REP. 397, 398
(2003).
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ents.20 Instead, FERPA leverages Congress’s spending power to deny federal
funding to institutions that fail to properly handle students’ records. As such,
any educational institution that has a policy of interfering with parents’ ability
to “inspect and review” their childrens’ “education records” is ineligible for
federal funding.21
Similarly, with respect to individuals other than students’ parents, no federal
funding is available to an institution “which has a policy or practice of permitting the release of education records (or personally identifiable information
contained therein other than directory information . . .) of students” without
either parental consent or a judicial order.22 It is unclear how many times an
institution must release education records before a “policy or practice” can be
found, but a single violation is certainly insufficient.23 Although the legislation
refers primarily to parents, when a student turns eighteen or begins to attend a
postsecondary institution, he obtains exclusive control of the protections otherwise afforded to parents.24
Under FERPA, the central question for administrators is often how broadly to
interpret the term “education record.” The legislation defines the term as
“records, files, documents, and other materials” that “contain information directly related to a student” and “are maintained by an educational agency or
institution or by a person acting for such agency or institution.”25 The Supreme
Court has interpreted the word “maintained” narrowly, remarking, “FERPA
implies that education records are institutional records kept by a single central
custodian, such as a registrar . . . .”26 There is broad agreement among courts
that institutions can, and often must, disclose documents with personally identifiable student information so long as that information, if it is protected by
FERPA, is redacted.27 Meanwhile, under FERPA, several classes of documents
explicitly do not qualify as “education records.” The most notable exemption is
for “records maintained by a law enforcement unit of the educational agency or
20. See Gonzaga Univ. v. Doe, 536 U.S. 273, 290 (2002) (holding that there is no private right of
action available under 42 U.S.C. § 1983 to enforce violations of FERPA).
21. 20 U.S.C. § 1232g(a)(1)(A) (2006).
22. Id. § 1232g(b)(1). Directory information includes the following: “the student’s name, address,
telephone listing, date and place of birth, major field of study, participation in officially recognized
activities and sports, weight and height of members of athletic teams, dates of attendance, degrees and
awards received, and the most recent previous educational agency or institution attended by the
student.” Id. § 1232g(a)(5)(A). Parents can opt out of having this information subject to release. Id.
§ 1232g(a)(5)(B). Certain other individuals also have access to education records under limited
circumstances. See, e.g., id. §§ 1232g(b)(1)(A)–(K).
23. See Gonzaga, 536 U.S. at 288 (“FERPA’s nondisclosure provisions . . . speak only in terms of
institutional policy and practice, not individual instances of disclosure.”).
24. 20 U.S.C. § 1232g(d) (2006).
25. Id. § 1232g(a)(4)(A).
26. Owasso Indep. Sch. Dist. v. Falvo, 534 U.S. 426, 434–35 (2002).
27. See, e.g., Unincorporated Operating Div. of Ind. Newspapers, Inc. v. Trs. of Ind. Univ., 787
N.E.2d 893, 908 (Ind. Ct. App. 2003).
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institution that were created by that law enforcement unit for the purpose of law
enforcement.”28
To date, no institution has lost funding as a result of FERPA violations.29
Nonetheless, FERPA’s impact on the nation’s educational system is hard to
underestimate. Almost all schools, from preschools to graduate schools, depend
largely on federal funding and are therefore within FERPA’s reach.30 As one
commentator observed, “[f]ew other laws have affected the daily administration
of schools and colleges as much as FERPA.”31
B. OPEN RECORDS LAWS AND THE SEARCH FOR TRANSPARENCY
All fifty states, as well as the District of Columbia and the federal government, have open records laws.32 By far the most well-known is the federal
Freedom of Information Act (FOIA).33 However, FOIA applies only to federal
agencies,34 so the statute has largely been absent from the discussion of FERPA,
which pertains to educational institutions. Consequently, FERPA and “right to
know” doctrines have interacted—and collided—almost exclusively in the arena
of state open records statutes.
One unifying theme among state open records laws is that state legislatures
view them as central to the proper functioning of a representative democracy,
and as such they are willing to afford strong presumptions in favor of information being publicly accessible.35 Nonetheless, the relationship between open
records laws and educational institutions varies substantially from state to
28. 20 U.S.C. § 1232g(a)(4)(B)(ii) (2006).
29. See Jill Riepenhoff & Todd Jones, Secrecy 101: A Dispatch Investigation Shows Many College
Athletic Departments Nationwide Use a Vague Federal Law To Keep Public Records from Being Seen,
COLUMBUS DISPATCH, May 31, 2009, at A1.
30. Thomas R. Baker, State Preemption of Federal Law: The Strange Case of College Student
Disciplinary Records Under F.E.R.P.A., 149 WEST’S EDUC. L. REP. 283, 285 (2001) (“With virtually
every educational institution in the nation dependent upon federal funds, FERPA in effect became the
law of the land for school administrators.”).
31. Id. at 283.
32. See Stewart, supra note 13, at 265.
33. 5 U.S.C. § 552 (2006).
34. See id. § 552(a); see also Lisa A. Krupicka & Mary E. LaFrance, Note, Developments Under the
Freedom of Information Act—1984, 1985 DUKE L.J. 742, 774–75.
35. See, e.g., S.C. CODE ANN. § 30-4-15 (2007) (“The General Assembly finds that it is vital in a
democratic society that public business be performed in an open and public manner so that citizens
shall be advised of the performance of public officials and of the decisions that are reached in public
activity and in the formulation of public policy. Toward this end, provisions of this chapter must be
construed so as to make it possible for citizens, or their representatives, to learn and report fully the
activities of their public officials at a minimum cost or delay to the persons seeking access to public
documents or meetings.”); TEX. GOV’T CODE ANN. § 552.001 (West 2004) (“Under the fundamental
philosophy of the American constitutional form of representative government that adheres to the
principle that government is the servant and not the master of the people, it is the policy of this state
that each person is entitled, unless otherwise expressly provided by law, at all times to complete
information about the affairs of government and the official acts of public officials and employees. . . . The provisions of this chapter shall be liberally construed to implement this policy.”).
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state.36 As a preliminary matter, open records laws typically do not affect
private colleges.37 Public schools, by contrast, are typically covered by open
records laws, although some states’ laws are written such that their application
to certain educational institutions is unclear.38 However, even in states that do
subject certain publicly funded institutions to open records laws, there can be
anomalies.
Take, for instance, Penn State University, which was recently besieged by a
sex-abuse scandal.39 Revelations of child molestation perpetrated by Jerry
Sandusky, a former assistant coach of the famed Nittany Lions football program, led to a number of dramatic consequences. University President Graham
Spanier resigned in disgrace.40 Iconic coach Joe Paterno was fired, and a statue
of him was unceremoniously removed from schools grounds.41 Sandusky was
convicted in court.42 And the NCAA slapped the University with a $60 million
fine.43 Amidst all of those changes, however, one thing has remained the same:
Pennsylvania’s lackluster open records law.
Under Pennsylvania’s open records law, Penn State and three other schools
are legislatively “exempt from the open-records law that applies to Pennsylvania’s 14 public universities.”44 That is because Penn State is considered a
“[s]tate-related institution.”45 As such, while it is subject to certain reporting
36. Part of this variation results from the differing degrees of effectiveness among the state laws.
There have been a number of studies that have examined the substantive provisions of the various open
records laws. These studies do not relate specifically to how the laws apply to schools but instead
measure the general effectiveness of the provisions. In one study, the Better Government Association
gave grade-point averages to the laws of all fifty states and the District of Columbia. Nebraska, with a
3.3 GPA (nearly a B⫹), came in first, whereas Alabama and South Dakota received failing grades. See
Bill F. Chamberlin et al., Essay, Searching for Patterns in the Laws Governing Access to Records and
Meetings in the Fifty States by Using Multiple Research Tools, 18 U. FLA. J.L. & PUB. POL’Y 415,
421–22 (2007).
37. See SPLC Tip Sheet: Access to University Foundation Records, STUDENT PRESS LAW CTR.,
http://www.splc.org/knowyourrights/legalresearch.asp?id⫽110 (last visited July 23, 2012).
38. See Universities, Hospitals and Other Publicly Funded Institutions Are Often Subject to FOIA
Laws, VR RES. BLOG (Jan. 14, 2010), http://vrresearch.com/blog/?p⫽668 (dividing state laws into
baskets based on how explicitly they cover publicly funded institutions).
39. See Bill Chappell, Penn State Abuse Scandal: A Guide and Timeline, NPR (June 21, 2012),
http://www.npr.org/2011/11/08/142111804/penn-state-abuse-scandal-a-guide-and-timeline.
40. See, e.g., Paula Reed Ward, Spanier Drops Lawsuit Against Penn State, PITTSBURGH POSTGAZETTE (July 19, 2012), http://www.post-gazette.com/stories/local/state/spanier-drops-lawsuit-againstpenn-state-645234/.
41. Chris Dufresne, Paterno Statue Comes Down a Day Before NCAA’s Hammer, CHI. TRIB. (July
22, 2012), http://www.chicagotribune.com/sports/college/ct-spt-0723-penn-state--20120723,0,5457786.
story.
42. Jury Convicts Jerry Sandusky, ESPN.COM (June 23, 2012, 2:29 PM), http://espn.go.com/collegefootball/story/_/id/8087028/penn-state-nittany-lions-jerry-sandusky-convicted-45-counts-sex-abusetrial.
43. Edith Honan, Penn State Hit with Unprecedented Penalties for Sandusky Scandal, REUTERS (July
23, 2012), http://www.reuters.com/article/2012/07/23/us-usa-pennstate-idUSBRE86L07F20120723.
44. Nathan Fenno, Penn State’s Exemption in State Law Limits Probe, WASH. TIMES (Dec. 6, 2011),
http://www.washingtontimes.com/news/2011/dec/6/penn-states-exemption-in-state-law-limits-probe/
?page⫽all.
45. 65 PA. STAT. ANN. § 67.102 (West 2010).
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requirements,46 it does not need to respond to open records requests from
members of the public.47 Critics have argued that without this exemption, the
scandal would have come to light far sooner than it actually did.48
While the Penn State example demonstrates how substantive provisions can
matter, procedural variations are what account for most of the differences
among states. In Minnesota, Michigan, and Wisconsin, institutions that violate
open records requirements can face punitive damages.49 While most states have
explicit statutory provisions governing the collection of attorney’s fees in open
records cases, six states—Alabama, Connecticut, Maine, Massachusetts, South
Dakota, and Wyoming—do not.50 On other issues, jurisdictions are divided
more evenly. For instance, twenty states provide for civil fines or forfeitures for
open records violations, but the laws in thirty-two jurisdictions (including the
federal government and the District of Columbia) do not have such provisions.51
Despite these differences, a common theme is that state legislatures are
typically conscious of potential conflicts between open records laws and the
various privacy laws that exist at the state and federal levels. As such, a
common provision in states’ open records laws is an exception for information
that is deemed confidential under another law.52
C. FERPA AND OPEN RECORDS LAWS: A COLLISION COURSE
Conflicts between FERPA and states’ open records laws “frequently arise.”53
Indeed, the relationship between FERPA on the one hand and open records laws
on the other is fraught with “tension . . . between two core democratic concepts—
individual privacy and the public’s right to know about the government’s
activities.”54 Typically, this tension arises when a journalist files an open
records request with an educational institution and the institution declines to
comply on the ground that FERPA purportedly bars disclosure. For example,
46. See id. § 67.1503.
47. See id. § 67.301 (noting the law’s applicability to “Commonwealth agenc[ies]”); id. § 67.102
(defining the term “Commonwealth agency”).
48. See, e.g., Al Tompkins, How Open Records Law Would Have Stopped Sex Abuse Sooner at Penn
State, POYNTER INST. (July 13, 2012), http://www.poynter.org/latest-news/als-morning-meeting/180740/
would-open-records-have-stopped-abuse-sooner-at-penn-state/.
49. See Stewart, supra note 13, at 280.
50. Id. at 282 & n.117.
51. Id. at 286 & n.150.
52. See, e.g., Baker, supra note 30, at 294 (“Fortunately for students and administrators, state
legislators who drafted public records laws sought to avoid conflicts between federal law and state law.
When a state open records law operated at cross-purposes with a federal law, lawmakers conceded in
advance that the conflict would be resolved in favor of applicable federal law. This they did by inserting
a specific exception in the state law for records defined as private under federal law.”).
53. Sunshine Law News: Public Disclosure Obligations and Student Records, OFFICE OF OHIO ATT’Y
GEN. MIKE DEWINE (July 6, 2011), http://www.ohioattorneygeneral.gov/Briefing-Room/Newsletters/Legalnews/July-2011/Public-Disclosure-Obligations-and-Student-Records [hereinafter Sunshine Law News].
54. Mathilda McGee-Tubb, Note, Deciphering the Supremacy of Federal Funding Conditions: Why
State Open Records Laws Must Yield to FERPA, 53 B.C. L. REV. 1045, 1051 (2012).
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when the Chicago Tribune filed an Illinois Freedom of Information Act55
request seeking information about the role that legacy status played in the
admissions process at the University of Illinois, the University claimed that
FERPA barred the release of the relevant documents.56 FERPA, of course, does
not apply to each and every piece of information in an educational institution’s
possession. Accordingly, upon receiving an open records request, institutions
must generally make good-faith efforts to comply.57 This involves turning over
documents that are not education records (and are not otherwise protected) and
redacting education records to remove personally identifiable student information while still releasing the nonprotected portions.58
When the process breaks down between requesters and educational institutions, the courts must step in to referee. Courts must resolve whether the
information sought constitutes an education record and, if so, whether it can
nonetheless be released. As to the former question, the courts all agree that if a
document is not an education record, FERPA does not apply.59 Thus, the case
law is replete with examples of judges ordering the release of information on
the ground that an institution misclassified documents as education records.60
However, in the event that the requester is seeking access to a bona fide
education record, courts are split on how to resolve the tension between the
right to know under open records laws and the privacy enshrined by FERPA.61
However, since this Note is concerned with institutions that negligently misclassify documents as education records, there is no need at the present moment to
resolve the conflicting approaches to the release of actual education records.
55. See 5 ILL. COMP. STAT. 140/1–140/11.5 (2011).
56. See Chi. Trib. Co. v. Univ. of Ill. Bd. of Trs., 781 F. Supp. 2d 672, 673–74 (N.D. Ill. 2011).
57. See, e.g., Sunshine Law News, supra note 53.
58. Id.
59. See generally Owasso Indep. Sch. Dist. v. Falvo, 534 U.S. 426, 428–31 (2002) (discussing the
contours of FERPA and the definition of the term “education record.”).
60. See Brief for Reporters Comm. for Freedom of the Press et al. as Amici Curiae Supporting
Appellee at 1–2, Chi. Trib. Co. v. Univ. of Ill. Bd. of Trs., 680 F.3d 1001 (7th Cir. 2012) (No. 11-2066)
(collecting cases).
61. This frequently involves weighing the language of FERPA against a state open records exception
shielding information that must be kept private under other applicable law. In Illinois, for instance, the
state’s act exempts from disclosure “[i]nformation specifically prohibited from disclosure by federal or
State law or rules and regulations implementing federal or State law.” 5 ILL. COMP. STAT. 140/7(1)(a)
(2011). In the Chicago Tribune’s lawsuit seeking information about legacy admissions, the court ruled
that even if the documents constituted education records, FERPA could not serve as a justification for
withholding them because, although FERPA can cause educational institutions to lose money, it does
not “specifically prohibit[]” them from releasing information. Chi. Trib. Co., 781 F. Supp. 2d at 675–77.
Other courts interpreting similar open records statutes have expressed skepticism toward this approach
and have taken the position that FERPA functionally requires schools to keep education records
confidential, thereby making FERPA a trump card in open records disputes. See, e.g., Unincorporated
Operating Div. of Ind. Newspapers, Inc. v. Trs. of Ind. Univ., 787 N.E.2d 893, 904 (Ind. Ct. App. 2003)
(“[I]f we were to hold . . . that FERPA was not a federal law requiring education records to be kept
confidential, public disclosure of such materials could soon become a commonplace occurrence.”).
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II. ABUSES OF FERPA: ORIGINS AND COSTS
Over the past several years, institutions’ use of FERPA has come under fire
from a variety of sources, including journalists, lawyers, judges, and even the
legislation’s own author. Section A focuses on the two most common criticisms.
The first is overcompliance with FERPA, which happens when administrators
who do not fully understand the legislation’s guidelines assert FERPA in
response to open records requests. The second is intentional flouting, which
occurs when institutions use FERPA as a shield to guard against the release of
embarrassing documents. Next, section B uses case studies to illustrate how
these problems materialize in actual litigation. This Part concludes with an
analysis of the costs of these two problems: namely, the litigation of unnecessary lawsuits and the suppression, or at the very least the delayed release, of
information of acute public interest.
A. OVERCOMPLIANCE AND INTENTIONAL FLOUTING
Frank LoMonte, the executive director of the Student Press Law Center
(SPLC), has watched the evolution of FERPA with a keen interest, observing
that, nationally, there is a “severe overcompliance issue.”62 The SPLC, which
devotes a portion of its website to educating student journalists about FERPA
and open records laws, cites as examples the University of Wisconsin’s withholding of minutes from public meetings and a number of universities’ refusal to
release the names of people who were given free football tickets.63
Former Senator Buckley, who after leaving Congress went on to serve as a
judge on the United States Court of Appeals for the District of Columbia
Circuit, has bemoaned the approach that schools have adopted toward FERPA.
Buckley, who authored FERPA in 1974, has complained that “[t]hings have
gone wild . . . . One likes to think common sense would come into play. Clearly,
these days, it isn’t true.”64 In particular, Buckley faulted institutions for “putting
their own meaning into the law.”65
Often, that meaning translates into blanket denials of media requests for
information. For instance, David Chartrand, a humorist and commentator from
Kansas, recalls an official at a local junior high school asserting FERPA in
response to his request to see one of the school’s lunch menus.66 Frequently, it
is difficult to ascertain whether unlawful withholding is motivated by confusion,
62. Lee Rood, U of I Wants Clarification After Request for Records, DES MOINES REGISTER (Oct. 22,
2008), http://pqasb.pqarchiver.com/desmoinesregister/access/1695736511.html?FMT⫽ABS&FMTS⫽
ABS:FT.
63. See FERPA and Access to Public Records, STUDENT PRESS LAW CTR., http://www.splc.org/pdf/
ferpa_wp.pdf (last visited May 1, 2012).
64. Riepenhoff & Jones, supra note 29.
65. Id.
66. See David Chartrand, FERPA Tales: It Doesn’t Always Apply, SOC’Y OF PROF. JOURNALISTS,
http://www.spj.org/ferpa5.asp (last visited May 1, 2012) (“Using the federal Family Educational Rights
and Privacy Act to dodge journalists has become a highly skilled sport among those who manage the
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inadequate attempts to ascertain the meaning of FERPA, or a desire to keep
embarrassing information from seeing the light of day. In many instances,
however, free-press advocates have observed what they perceive to be an
intentional flouting of the law by school administrators. For instance, a large
group of media organizations, acting collectively as amici curiae in the Supreme
Court’s review of the University of Illinois legacy-admissions case,67 pointedly
accused the university of “cr[ying] ‘student privacy’ in an attempt to frustrate
public disclosure of information reflecting unflatteringly on the conduct of the
university’s administrators.”68 Similarly, Sonny Albarado, the president of the
Society of Professional Journalists, has accused institutions of “hiding behind
[FERPA] rather than opting for openness.”69
Mary Margaret Penrose, an education law expert at the Texas Wesleyan
School of Law, has written extensively about the abuses associated with the
so-called “FERPA defense.”70 Penrose has noted that universities “regularly
invoke FERPA in response to open-record requests or press inquiries where the
information sought places the institution in a negative light. The goal is
non-disclosure. The chorus is student privacy. The tool: the FERPA defense.”71
Penrose argues that this “FERPA chimera is intended to distract us from the bad
things happening at universities”72 and contends that many times, the “resort to
FERPA is not truly to advance ‘student privacy,’ but [is] rather a convenient
defense to salvage the school’s own reputation.”73
There have been very few attempts to track with any precision the extent of
such abuse at the national level. Instead, most of the evidence is anecdotal and
incapable of being reduced to statistics: the Montana school that unlawfully
denied a newspaper’s request for redacted information on the punishments for
two students who shot fellow students with BB guns,74 or an Arizona school
district’s unlawful withholding of settlement information after a student had
been illegally strip-searched by school officials.75 Perhaps the most thorough
attempt to date at gauging the overcompliance problem came as part of a 2009
flow of information at American schools and universities. ‘FERPA’ continues the American tradition of
turning nouns and proper names into active verbs.”).
67. See supra note 56 and accompanying text.
68. Brief for Reporters Comm. for Freedom of the Press et al. as Amici Curiae Supporting Appellee,
supra note 60, at 1.
69. Sonny Albarado, FERPA Often Misconstrued, SOC’Y OF PROF’L JOURNALISTS, http://www.spj.org/
ferpa2.asp (last visited May 1, 2012).
70. See, e.g., Mary Margaret Penrose, Tattoos, Tickets, and Other Tawdry Behavior: How Universities Use Federal Law To Hide Their Scandals, 33 CARDOZO L. REV. 1555, 1557 (2012).
71. Id. (footnotes omitted).
72. Id. at 1570.
73. Id. at 1562.
74. See Scott Sternberg, Montana Supreme Court Rules School Board Should Have Released
Records of Disciplinary Action, STUDENT PRESS LAW CTR. (May 16, 2007), http://www.splc.org/news/
newsflash.asp?id⫽1518.
75. See Peter Velz, Judge Orders Release of Settlement Agreement in ‘Strip Search’ Case That Went
to Supreme Court, STUDENT PRESS LAW CTR. (Sept. 16, 2011), http://www.splc.org/news/newsflash.asp?
id⫽2276.
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investigation by the Columbus Dispatch into the use of FERPA in the universe
of college athletics.76 The newspaper sent document requests to 119 colleges,
seeking records such as flight manifests and ticket information for sports teams,
as well as information regarding NCAA violations.77 The results were telling:
fifty of the schools did not provide any information, and, of the ones that did
respond, approximately half censored their flight manifests, which even under
the broadest interpretation of FERPA would not qualify as education records.78
B. CASE STUDIES: THE PROBLEM IN ACTION
The cases below provide two examples of instances in which a court has
unabashedly criticized a school for its reliance on FERPA. Although there is no
guarantee that these withholdings would, under the system proposed by this
Note, result in penalties, they provide prime examples of the types of behavior
that should, at the very least, be subject to further review by the Department of
Education’s Family Policy Compliance Office.
1. Poway Unified School District v. Superior Court (In re Copley Press, Inc.)79
Poway has its origins in a savage assault perpetrated by three sixteen-year-old
sophomores at a high school in California’s Poway Unified School District.80 In
March 1997, the students sodomized a freshman at the school with a broomstick.81 The case garnered significant attention in the media and resulted in the
three sophomores pleading guilty in juvenile court.82 Meanwhile, the victim’s
attorney alerted the school district to a potential lawsuit under the California
Tort Claims Act,83 which led to a settlement between the victim and the
district.84 Separately, one of the perpetrators filed a claim against the school
district under the same act.85 As part of its coverage of the incident, the San
Diego Union-Tribune86 filed a request under California’s Public Records Act to
obtain access to all Claims Act documents filed with the school district during a
roughly four-month period in 1997.87
76. Riepenhoff & Jones, supra note 29.
77. Id.
78. See id.
79. 73 Cal. Rptr. 2d 777 (Ct. App. 1998)
80. Id. at 780.
81. Id.
82. Id.
83. Id.; see also CAL. GOV’T CODE §§ 810–996.6 (West 2012) (setting forth requirements for suing a
government entity for damages).
84. Poway, 73 Cal. Rptr. 2d at 780.
85. Id.
86. The paper now goes by the name U-T San Diego.
87. Poway, 73 Cal. Rptr. 2d at 780; see also CAL. GOV’T CODE §§ 6250–6276.48 (West 2008).
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The district declined to provide the information, citing FERPA and FERPA’s
California counterpart88 as one of its primary reasons, and the newspaper’s
publisher brought suit.89 After losing in the trial court, on appeal the district
repeated its contention that the Claims Act documents constituted education
records (or, in the parlance of the California counterpart to FERPA, “pupil
records”).90 The appellate court summarily rejected this contention, concluding:
“It defies logic and common sense to suggest that a Claims Act claim, even if
presented on behalf of a student, is an ‘educational record’ or ‘pupil record’
within the purview of these exemptions.”91 Moreover, the court noted, the mere
fact that “a litigant has chosen to sue a school does not transmogrify the Claims
Act claim into such a record.”92
2. Bracco v. Machen93
Frank Bracco, at the time a student at the University of Florida, received a
paradoxical response when he sought to obtain recordings of public meetings of
the school’s student senate. The University told him he was allowed to listen to
the recordings in the senate office, but because of the school’s purported FERPA
obligations, he was not permitted to obtain copies of the recordings.94 Bracco
wanted to post the copies online to increase the transparency of the student
government.95 After the University repeatedly denied his requests, he filed suit
in August 2009 under Florida’s Public Records Act,96 and the University
responded by asserting FERPA.97
The trial court, in its findings of fact, made a number of observations which
serve to underscore the bizarre nature of the University’s FERPA claim. The
court noted, for instance, that the student senate meetings were open to the
public.98 Meanwhile, even as the university continued to withhold copies of all
of the recordings sought, recordings of two of the senate meetings were
available on the University’s website.99 Finally, although the University claimed
that releasing the recordings would violate the student senators’ privacy under
FERPA, the University’s website contained summaries of the meetings which
referenced student participants by name.100
88. CAL. EDUC. CODE § 49061 (West 2006).
89. Poway, 73 Cal. Rptr. 2d at 780.
90. Id. at 780–84.
91. Id. at 784.
92. Id.
93. No. 01-2009-CA-4444, slip op. (Fla. Cir. Ct. Jan. 10, 2011) (order granting plaintiff’s motion for
summary judgment).
94. Id. at 1–2.
95. Kyle McDonald, Court: UF Student Senate Records Not Covered by FERPA, STUDENT PRESS LAW
CTR. (Jan. 19, 2011), http://www.splc.org/news/newsflash.asp?id⫽2181.
96. FLA. STAT. ANN. §§ 119.01–.15 (West 2008).
97. Bracco, No. 01-2009-CA-4444, at 1–2.
98. Id. at 2.
99. Id. at 3.
100. Id.
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Given these anomalies, the court quickly dispensed with the university’s
FERPA arguments, calling them “hardly logical.”101 In particular, the court
noted that it was “inconsistent for the Defendant to release certain student
government records . . . while holding that video recordings of the same student
senate meetings are exempt from disclosure under FERPA . . . .”102 However,
the ruling was not released until January 2011, approximately seventeen months
after Bracco initially filed suit. By that time, Bracco had already graduated from
the University.103
C. EXPLORING THE COSTS
The main result of the current state of FERPA compliance is that information
that universities are legally required to release under state open records laws
often becomes public only after a long delay—if at all. Litigation, even when
the issues of law are clear, can be a lengthy process, as the Bracco case
demonstrates. This is particularly problematic given the heightened public
interest in much of this information. The Columbus Dispatch, in its investigation into schools’ use of FERPA, provides an example of the stakes at issue.104
For instance, only ten percent of universities that responded provided unedited
reports of NCAA violations.105 “No one disputes that grades are and should be
private. But today, privacy is extended to athletes who have gambled, accepted
payoffs, cheated, cashed in on their notoriety, and even sexually abused others,”
the newspaper concluded.106 Given universities’ aggressive, and oftentimes
unlawful, use of FERPA, it is “virtually impossible to decipher what is going on
inside a $5 billion college-sports world that is funded by fans, donors, alumni,
television networks and, at most schools, taxpayers.”107
There are also institutional costs to allowing schools to shield their inner
workings from the public. Indeed, it enshrines the very secrecy that FERPA,
through its requirement that parents be allowed to access students’ records,
sought to avoid. As one court noted in rejecting a school’s reliance on FERPA:
“Prohibiting disclosure of any document containing a student’s name would
allow universities to operate in secret, which would be contrary to one of the
policies behind the Family Educational Rights and Privacy Act.”108
101.
102.
103.
104.
105.
106.
107.
108.
Id. at 5.
Id.
McDonald, supra note 95.
See supra notes 76–78 and accompanying text.
Riepenhoff & Jones, supra note 29.
Id.
See id.
Kirwan v. The Diamondback, 721 A.2d 196, 204 (Md. 1998).
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III. THE INADEQUACY OF CURRENT PROTECTIONS
This Part demonstrates why the current regime provides an inadequate check
against the abuses that have been proliferating. Section A explores some of the
penalties that can currently be imposed against institutions that unlawfully
withhold information in response to valid open records requests. Section B
explains why the current penalty structures fail to properly incentivize compliance with open records laws. In particular, FERPA presents a special case of
misaligned incentives, and that problem cannot be adequately remedied using
existing procedures. Meanwhile, the frequent involvement of student journalists
in FERPA-related open records cases raises concerns that are not present in
most open records disputes. Because of the unique issues that these student
journalists present, special protections are more readily justifiable.
A. A LOOK AT HOW OPEN RECORDS LAWS CURRENTLY PUNISH VIOLATORS
Imposing penalties for noncompliance with open records laws is hardly a
novel concept. Indeed, most laws of this variety allow for penalties when
records are improperly withheld.109 Nonetheless, over time, one of the most
common criticisms of open records laws has been that they are toothless, and, as
such, there have been frequent calls for reforming the penalties associated with
withholding documents. Such criticisms have often targeted the federal Freedom of Information Act (FOIA), the sanctions provision of which is rarely
invoked by courts.110 Under FOIA, an agency employee can be sanctioned for
withholding documents if: (1) the court orders production of the documents; (2)
the court orders attorney’s fees against the government; (3) the court finds
reason to believe the agency employee acted arbitrarily or capriciously in
withholding the information; and (4) a subsequent investigation leads to a
recommendation for the imposition of a sanction.111 Echoing a frequent refrain,
one commentator noted that this system “has proved to be an almost insurmountable barrier for FOIA plaintiffs.”112
Litigants at the state level generally fare better than their federal counterparts.
Indeed, whereas FOIA merely authorizes “disciplinary action” against the employee responsible for withholding records, twenty jurisdictions explicitly allow
for civil fines or forfeitures for violations of open records laws.113 However, in
109. See Stewart, supra note 13, at 286–98 (surveying various jurisdictions’ penalty provisions).
110. See Paul M. Winters, Note, Revitalizing the Sanctions Provision of the Freedom of Information
Act Amendments of 1974, 84 GEO. L.J. 617, 618 (1996) (“However, during the sanctions provision’s . . .
life, the federal courts have been reluctant to take the . . . steps necessary to invoke the provision. This
author found only one instance in which a federal court invoked the provision.” (footnote omitted)).
This is in stark contrast to some of the expectations in place at the time of the 1974 FOIA amendments
that created the sanctions provision. See, e.g., Robert G. Vaughn, The Sanctions Provision of the
Freedom of Information Act Amendments, 25 AM. U. L. REV. 7, 7 (1975) (calling the sanctions provision
“potentially . . . one of the most important congressional enactments in recent years”).
111. 5 U.S.C. § 552(a)(4)(F) (2006); see also Winters, supra note 110, at 623.
112. Winters, supra note 110, at 623.
113. Stewart, supra note 13, at 286.
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most of these jurisdictions, the unlawful withholding must be done “willingly”
or “knowingly” in order for civil fines to kick in.114 The same typically holds
true at the state level for punitive damages and criminal penalties.115
B. THE NEED FOR SPECIAL PROTECTIONS
Although these state-level protections are certainly better than their federal
counterparts, this Note argues that they are insufficient in cases in which the
invocation of FERPA is part of the mix. The lack of consistency among states’
penalty regimes, coupled with the high barriers inherent in making a showing of
willful or knowing withholding, provides a weak incentive for schools to
comply with open records requests. This is arguably true of all institutions that
are subject to open records laws. However, what sets educational institutions
apart is the perverse incentive to rely on federal law to deny requests. This
section traces this issue to its sources—namely, the temptations to overcomply
with FERPA, to intentionally flout open records requests, and to force litigation—
and explains why the prevalence of student journalists in FERPA-related cases
creates a special problem.
1. Misaligned Incentives
Currently, the choice facing a school that gets an open records request is that
the school can honor the request and release the documents, or it can cite
FERPA and do nothing. The upside to releasing the information is that it could
allow the school to honor its obligations under the relevant open records act.
Conceivably, the school could also avoid the costs of litigation and any associated fees, such as attorney’s fees and civil penalties. However, these costs are
unlikely to materialize. This is primarily because litigation is unlikely to ensue.
For instance, at the federal level, a combined twenty-five departments and
agencies denied 20,784 FOIA requests in 2004.116 Of those, fewer than two
percent led to litigation that made its way through the court system to a final
judgment.117 Moreover, of the 2,460 FOIA cases that reached a judicial decision
between 1999 and 2004, only seven-tenths of one percent involved media
companies.118
These numbers suggest that journalism outlets are unlikely to pursue lawsuits. This reluctance has a number of root causes, including budget shortfalls
and concerns that litigation delays would render information stale by the time it
is released. For reasons explained below, the aversion to litigation is even more
pronounced among student journalists, who are frequently the ones involved in
114. Id. at 287.
115. Id. at 290, 295.
116. FOIA Litigation Decisions, 1999–2004, COAL. OF JOURNALISTS FOR OPEN GOV’T 1, http://www.
docstoc.com/docs/52204362/FOIA-Litigation-Decisions-1999–2004 (last visited Sept. 11, 2012).
117. Id.
118. Id.
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FERPA-related disputes with educational institutions.119 Moreover, while attorney’s fees are sometimes awarded when litigation does ensue,120 they are often
insubstantial costs for well-funded institutions to absorb, and this author has not
come across a single case in which civil penalties have been awarded for the
improper invocation of FERPA in an open records dispute.
On the other hand, the potential downsides to releasing the information are
fairly substantial. For instance, the documents could be embarrassing, and their
release could hurt the institution’s reputation. Alternatively, if the documents
actually are education records, the institution could be putting its federal
funding in jeopardy. Consequently, on a comparative basis, the costs of invoking FERPA to improperly deny an open records request are relatively low, and
in the likely event that no litigation ensues, they are nonexistent. Indeed, “[i]f
unlawfully refusing to disclose a record is not [credibly] punishable by either
civil or criminal penalt[ies], but unlawfully disclosing a record [is costly] . . .
it does not take much imagination to see on which side [an administrator] would
err.”121 Even when requests do not involve documents that could legitimately be
considered education records, the cost of denying the requests is low, and the
occasional lawsuit is likely less expensive than investing in the resources to
properly vet open records requests on the front end.
Beyond that, FERPA actually provides an incentive for administrators to
force litigation. That is because a judicial decision ordering the release of
documents immunizes institutions from the threat of having their federal funding cut off for releasing education records.122 Because the cost of any given
lawsuit almost certainly pales in comparison to the amount of federal funding
an institution receives, the option of forcing journalists to litigate—which they
are unlikely to do—can become even more appealing to institutions that are
otherwise on the fence about whether to comply with an open records request.
Taken together, these incentives often result in schools staking out extreme
positions rather than paying close attention to compliance. Take, for instance,
Indiana University, which in the course of FERPA-related open records litigation rejected the notion that it could merely redact students’ information from
documents and went “so far as to suggest that if a 1000 page document
consisting of otherwise discloseable material contained one line regarding a
student’s grade, then the entire 1000 page document must be withheld pursuant
to FERPA.”123 While the court wisely rejected that approach,124 it was a
low-cost position for the University to advance, and had it not been for that one
119. See infra section III.B.2.
120. See, e.g., Poway Unified Sch. Dist. v. Super. Ct. (In re Copley Press, Inc.), 73 Cal. Rptr. 2d 777,
784 (Ct. App. 1998).
121. See Stewart, supra note 13, at 293 (footnote omitted).
122. See 20 U.S.C. § 1232g(b)(2)(B) (2006).
123. Unincorporated Operating Div. of Ind. Newspapers, Inc. v. Trs. of Ind. Univ., 787 N.E.2d 893,
908 (Ind. Ct. App. 2003).
124. See id.
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particular lawsuit, the University could have continued to deny open records
requests on that basis without facing any legal costs.
2. The Special Problem of Student Journalists
As explained above, absent a credible threat of litigation from journalists, the
incentives strongly favor institutions—either negligently or in an attempt to
keep embarrassing information hidden—asserting FERPA when the documents
in question are not education records. On the aggregate, the threat of litigation is
relatively weak because journalists sue infrequently. The problem, however, is
particularly acute given that FERPA frequently arises in the context of open
records requests from student journalists. After all, student journalists, whose
role it is to cover the affairs of their schools, are the ones most likely to interact
with administrators.
It is difficult to measure with any certainty how FERPA affects student
journalists. Indeed, unless a case is litigated, there is unlikely to be any public
record of the underlying dispute. Quantifying the number of student journalists
who drop their open records requests after their schools invoke FERPA instead
of pushing ahead and demanding access to the documents is like trying to
measure the chilling effect of a speech regulation. It is an imprecise estimate of
how much activity would have happened in a counterfactual universe.125 In the
case of FERPA and open records laws, it involves an inquiry into how many
more records would become public in a universe in which educational institutions applied a more equitable approach to open records requests.
Despite the difficulty of precisely quantifying the effect, there is good reason
to believe that the heavy presence of student journalists in these cases makes the
threat of litigation even more remote and thereby increases the incentives for
institutions to improperly deny open records requests. Frank LoMonte, the
executive director of the SPLC, deals with student journalists on a daily basis.
In his experience, students, taken as a class, are far more averse to litigation
than professional journalists: “Most students are hesitant to push their school to
the wall for public records.”126 According to LoMonte, “[a]s a threshold matter,
the vast majority of college journalists go their entire career without filing any
public information requests.”127
Those who do file them face “psychological and practical barriers” to challenging the denial of those requests.128 “The psychological barrier is it’s really
intimidating to sue your own school,” LoMonte says.129 Indeed, schools have
125. See, e.g., Leslie Kendrick, Speech, Intent and the Chilling Effect, 54 WM. & MARY L. REV
(forthcoming 2013) (manuscript at 43) (“It is difficult to establish either the presence or the absence of
a chilling effect, let alone to measure the extent of such an effect.”).
126. Telephone Interview with Frank LoMonte, Exec. Dir., Student Press Law Ctr. (Apr. 30, 2012)
[hereinafter LoMonte] (on file with author).
127. Id.
128. Id.
129. Id.
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been known to “bully [students] into backing down,” says David Cuillier, an
open records specialist at the University of Arizona.130 Informal audits of
universities’ open-records-compliance records have confirmed this impression.
In one study, journalism students in Georgia requested documents from a
number of sources, including police stations and universities.131 While the
majority of universities complied, students were often “taken aback by rude
treatment.”132 The students also reported that universities sometimes “threw up
roadblocks” in response to open records requests.133
On the practical side, most student journalists have relatively short careers—
after all, college typically lasts only four years—and therefore have little reason
to take on lawsuits that will outlive their time at their schools. Moreover, most
student publications lack access to sophisticated legal resources and are unable
to fund litigation. Consequently, it is highly unlikely that the negligent denial of
an open records request will result in a lawsuit. “By far, the vast majority [of
potential cases] will never see the inside of a courtroom,” according to LoMonte.134
IV. FIXING FERPA
The combination of rampant abuses and misaligned incentives signals the
need for a legislative solution to this growing problem. While it is conceivable
that this could happen at the state level, this Note proposes a federal solution. To
date, most proposed legislative solutions to this problem have focused on
amending FERPA’s definition of education records to explicitly limit its applicability. Mary Penrose, the Texas Wesleyan School of Law expert, has led the
charge by calling upon Congress to “sculpt a new definition that provides
protection only to academic materials and records, not all items within a
school’s possession—even fleetingly on an e-mail server—that somehow reference or mention a student.”135 Penrose notes that the current definition is
130. Telephone Interview with David Cuillier, Assoc. Professor of Journalism, Univ. of Ariz. (May
2, 2012) (on file with author).
131. See CAROLYN S. CARLSON ET AL., 2008 GEORGIA STUDENT SUNSHINE AUDIT: TESTING STATEWIDE
COMPLIANCE OF THE GEORGIA OPEN RECORDS ACT 2, 11 (2009).
132. Id. at 11.
133. Id. at 12.
134. LoMonte, supra note 126.
135. See Penrose, supra note 10, at 106. Penrose’s proposed definition, which would be codified in
place of the current 20 U.S.C. § 1232g(a)(4)(A) (2006), is:
For purposes of this section, the term “education records” means, except as may be provided
otherwise in subparagraph (B), all official records, files, documents, and other materials,
whether prepared, kept, collected or stored electronically, which—
(i) contain information directly related to a student’s academic potential, academic progress, or academic performance; and
(ii) are intentionally maintained by an educational agency or institution, or any person
acting for such agency or institution, in any official school or university file or folder.
Id. (footnote omitted).
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“pliable” and subject to manipulation and argues that a revamped definition can
help “rein in schools that have inverted the law to protect schools, not students,
from embarrassing disclosures.”136
This proposal is a good one, and it would likely have some success in
constraining the abuses. However, it does not go far enough. In conjunction
with any amendments to the definition of the term education records, Congress
should also provide for penalties against institutions that use FERPA to unlawfully withhold documents. Until the financial calculus changes, schools can
continue to assert FERPA with little or no cost. To date, however, no proposal
has been set forth for how to implement penalties against institutions that abuse
FERPA. Penrose notes that penalties might be useful, but she stops short of
crafting a mechanism for implementing them.137 This Note seeks to fill that
void.
In particular, this Note suggests that Congress use its spending power to
amend FERPA to allow for these penalties. The amendment would provide for
the withholding of a fixed percentage of federal funds from institutions that,
without any reasonable basis in the law, misclassify documents as education
records in response to valid open records requests. The withholding would take
place in the fiscal year after the violation is found. Funding levels would return
to normal the year following the imposition of the penalty. The Department of
Education’s Family Policy Compliance Office, the same office that determines
whether an institution has a policy or practice of disclosing education records,
would be tasked with evaluating whether the withholding lacked a reasonable
basis. It would have the authority to review a school’s withholding any time a
court orders the production of documents after the school had relied on FERPA
in withholding them.
This Part explores Congress’s authority to enact this amendment to FERPA.
Section A chronicles Congress’s Spending Clause powers and the limitations
that have been placed on them. Meanwhile, section B demonstrates that amending FERPA to provide for penalties is well within Congress’s authority. This
Part closes with some considerations for Congress to take into account when
crafting the penalty. Section C discusses the appropriate size for the penalty, and
section D justifies the proposed standard of liability—withholding documents
without a reasonable basis in the law.
A. THE SPENDING CLAUSE: GENERAL PRINCIPLES
Congress has a well-documented ability to condition federal funds on recipients’ compliance with prescribed conditions. This authority derives from Congress’s authority to “lay and collect Taxes, Duties, Imposts and Excises, to pay
136. Penrose, supra note 70, at 1590–91.
137. See id. at 1598.
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the Debts and provide for the common Defence and general Welfare of the
United States.”138 Indeed, Congress “has repeatedly employed the power [to
spend] ‘to further broad policy objectives by conditioning receipt of federal
mon[ies] upon compliance by the recipient with federal statutory and administrative directives.’”139
Congress can use its power to condition federal funding to achieve results
indirectly even if it is not permitted to mandate them through direct legislation.
For instance, in South Dakota v. Dole, the Supreme Court famously ruled that,
even assuming Congress does not have the authority to set a national minimum
age for alcohol consumption, Congress was nonetheless permitted to withhold
five percent of highway funds from states that did not set their minimum
drinking age at twenty-one.140 This power, however, comes with limitations.
The Dole Court identified five of them. First, the use of the spending power
must be in furtherance of the general welfare.141 Second, the conditions placed
on recipients must be unambiguous.142 Third, the conditions need to pertain to a
federal interest in a particular project or program.143 Fourth, the ends sought
must not be otherwise unconstitutional.144 And finally, the conditions must not
be unduly coercive.145
Until the recent decision in National Federation of Independent Businesses v.
Sebelius,146 the fifth limitation was more theoretical than practical, as the
Supreme Court had never struck down a conditional spending provision on
coercion grounds.147 In Sebelius, the Court examined the proposed Medicaid
expansion that formed part of President Obama’s signature health care law.148
Under the law, Congress authorized the cutoff of all existing Medicaid funds
from states that refused to expand coverage under the program to individuals
under age sixty-five who earn up to 133 percent of the federal poverty level.149
Noting that federal Medicaid funding accounts for more than ten percent of
most states’ budgets, Chief Justice John Roberts labeled the threatened cutoff “a
gun to the head” and an example of “economic dragooning” that crossed the
line into unconstitutional coercion.150 Nonetheless, Roberts declined to “fix a
138. U.S. CONST. art. 1, § 8, cl. 1.
139. South Dakota v. Dole, 483 U.S. 203, 206 (1987) (quoting Fullilove v. Klutznick, 448 U.S. 448,
474 (1980) (plurality opinion)).
140. Id.
141. Id. at 207.
142. Id.
143. Id. at 207–08.
144. Id. at 208.
145. Id. at 211.
146. 132 S. Ct. 2566 (2012).
147. See id. at 2634 (Ginsburg, J., dissenting in part) (“Prior to today’s decision, however, the Court
has never ruled that the terms of any grant crossed the indistinct line between temptation and
coercion.”).
148. See id. at 2577 (majority opinion).
149. See id. at 2601 (opinion of Roberts, C.J.).
150. Id. at 2604–05.
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line” to be used in future cases to decide precisely when a funding condition
becomes unconstitutional.151
B. APPLYING THE TEST
Congress has a rich history of using the spending power to indirectly regulate
educational institutions.152 For instance, in Rumsfeld v. Forum for Academic
and Institutional Rights, Inc.,153 the Supreme Court upheld the Solomon Amendment, which provides for the withholding of certain federal funds from institutions of higher education that deny military recruiters the same access enjoyed
by other recruiters.154 Similarly, in Grove City College v. Bell,155 the Court
validated Congress’s enactment of Title IX of the Education Amendments of
1972, which conditions federal funding on schools’ abstention from sex-based
discrimination.156 The Court noted that the argument that Title IX was an
invalid use of the spending power “warrants only brief consideration” because
“Congress is free to attach reasonable and unambiguous conditions to federal
financial assistance that educational institutions are not obligated to accept.”157
Indeed, FERPA itself is Spending Clause legislation, and Congress’s authority to enact it has never been called into question by a court. The only time the
Supreme Court has referenced Congress’s use of the spending power to enact
FERPA, it did so without even the slightest hint of reservation.158 While the
Supreme Court has never subjected FERPA to a Dole analysis, the only possible
factor that could raise concern would be the coercion test because the legislation
permits the withholding of all federal funds.159 However, Title IX also allows
for a complete cutoff,160 and that did not deter the Court in Grove City
College.161 Even in light of Sebelius, then, it appears that FERPA is on solid
ground.
151. Id. at 2606 (“It is enough for today that wherever that line may be, this statute is surely beyond
it.”).
152. See McGee-Tubb, supra note 54, at 1070 (noting that “Congress often uses its spending power
in areas of traditional state concern, such as welfare and education”).
153. 547 U.S. 47 (2006).
154. Id. at 58 (“The Solomon Amendment gives universities a choice: Either allow military
recruiters the same access to students afforded any other recruiter or forgo certain federal funds.
Congress’ decision to proceed indirectly does not reduce the deference given to Congress in the area of
military affairs.”).
155. 465 U.S. 555 (1984) (superseded by statute on other grounds).
156. Id. at 575–76.
157. Id. at 575.
158. See Gonzaga Univ. v. Doe, 536 U.S. 273, 278 (2002) (“Congress enacted FERPA under its
spending power to condition the receipt of federal funds on certain requirements relating to the access
and disclosure of student educational records.”).
159. See McGee-Tubb, supra note 54, at 1077 (“The significant amount of federal funding tied to
FERPA raises questions about whether FERPA leaves states and universities no choice but to accept the
funds, in violation of Dole’s fifth coercion restriction.”).
160. See 20 U.S.C. § 1682 (2006).
161. See Grove City Coll., 547 U.S. at 574–75.
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If Congress can use the Spending Clause to keep education records private, it
only makes sense that it can also use the same power to encourage the public
release of documents that were never meant to be confidential. Moreover, unlike
FERPA’s existing provisions, which can lead to the withholding of all funding,
this proposal calls for cutting off a portion of the funding only of institutions
that negligently suppress open records requests.162 Consequently, this proposal
is even less concerning from a Dole standpoint than the currently enacted
FERPA provisions.
C. CALIBRATING THE PENALTIES
For penalties to work properly, they must be properly calibrated. For instance, if a statute seeks to incentivize “X” and the cost savings to a company
that does “not X” are $1 million per year, a fine of $1,000 is unlikely to have
much impact on the actor’s behavior. Similarly, penalties must be adjusted
based on the likelihood of their imposition. This is so because the “motivation
to invest in precautions hinges upon the credibility of the threat of [imposition].”163 Thus, if all drivers who speed were apprehended, speeding tickets
could be much less expensive; the markup in price is needed because without it,
traffic regulations, which are sporadically enforced, would not have any meaningful deterrent value.164 Given the likelihood that most negligent withholding of
documents will never be challenged,165 the penalties must be significant enough
to make up for their sporadic enforcement.
At the same time, in order to truly deter, penalties “must be more than
hypothetical” because in many instances “it is the certainty of punishment,
rather than the punishment’s severity, that deters violation.”166 Take, for instance, the current version of FERPA, which authorizes the cutoff of the entirety
of a university’s federal assistance.167 Penrose suggests that institutions have
learned that the federal government is unlikely to ever impose such a draconian
sanction, and that, as a result, what was designed to be the ultimate threat—the
withholding of all funding—has been exposed as a bluff.168 Consequently,
while the punishment for negligent withholding should be significant, it should
not be so harsh that the federal government would hesitate too much before
imposing it. In addition, less dramatic penalties are more politically feasible and
a better safeguard against complaints of coercion. This Note does not propose to
resolve with precision the optimal percentage of federal funds that should be
162. See infra section IV.C for a discussion of how to calculate the proper amount to withhold.
163. Linda Sandstrom Simard, Response, Fees, Incentives, and Deterrence, 160 U. PA. L. REV.
PENNUMBRA 10, 13 (2011), http://www.pennumbra.com/responses/09-2011/Simard.pdf.
164. See, e.g., James Gibson, Doctrinal Feedback and (Un)reasonable Care, 94 VA. L. REV. 1641,
1652 (2008) (discussing incentive structures associated with speeding tickets).
165. See supra section III.B.
166. Penrose, supra note 70, at 1597.
167. See supra notes 21–22 and accompanying text.
168. Penrose, supra note 70, at 1598 (“The threat of complete loss of federal funding sounds
ominous, until one realizes that the penalty has never ever been applied to any school.”).
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withheld in response to each violation. However, five percent, which was the
threatened withholding in Dole, seems to be a reasonable place for Congress to
start.
D. CHOOSING A STANDARD
The final component of the proposal is its standard for liability. The “without
reasonable basis in the law” standard is borrowed from the Senate’s initial draft
proposal for imposing sanctions on agency officials who unlawfully withhold
documents under FOIA.169 The Senate proposed this standard as part of the
1974 FOIA amendments that created the current regime of sanctions available
under that law.170 As formulated by the Senate’s draft proposal, it was functionally a negligence standard; thus, sanctions would not attach in the case of
“reasonable differences of legal opinion.”171 However, after resistance from the
House, the standard was changed to punish only arbitrary or capricious withholdings.172
This arbitrary-or-capricious standard, however, has been an unduly heavy
burden on litigants, as have the state-level standards requiring a showing of
willful or intentional violations.173 To have any reasonable chance at deterrence,
penalties must be credible. Especially at the state level, where penalties often
require heightened culpability, it is virtually impossible for a judge to find a
subjective bad intent when an institution can plausibly claim that it was merely
concerned with the privacy of its students when it asserted FERPA. As such, a
different approach is needed.
Asking the Family Policy Compliance Office to determine whether an institution has a reasonable basis in the law for invoking FERPA is hardly a departure
from the Office’s traditional role. Indeed, to determine whether an institution
has a policy or practice of releasing education records, it must have expertise in
determining what exactly constitutes an education record that must be kept
private. To carry out this task, it has developed extensive regulations, which it
can employ when making determinations of reasonableness.174 Notably, the
office would not be tasked with interpreting state open records laws; instead, it
would only be examining whether institutions are being unreasonably obstructionist under federal law. Nor would the proposal put an unfair burden on
institutions, as they would be allowed to demonstrate that they were relying on
an interpretation of the law which was reasonable (even if ultimately wrong).
Thus, an institution that can cite to relevant precedent supporting its position
would likely avoid fines, while one that cannot would be more likely to face
punishment.
169.
170.
171.
172.
173.
174.
See Winters, supra note 110, at 630–31.
Id.
Id.
Id. at 631.
See supra section III.A.
See 34 C.F.R. § 99.30–.39 (2011).
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CONCLUSION
Currently, institutions that overcomply with FERPA have almost no costs to
internalize. The financial incentives heavily favor denying open records requests, and there is very little available to balance the scales. This “frustrates the
purported policy of openness behind the open government laws.”175 Therefore,
it is necessary to provide a countervailing economic incentive, such that institutions will face penalties not only for undercompliance with FERPA, but also for
overcompliance.
Congress observed a similar set of misaligned incentives when it passed the
Clery Act, which makes participation in federal financial-aid programs contingent upon colleges and universities making certain crime reports and statistics
available to their communities.176 Evidence of high rates of crime on campus,
of course, is not information that a university is likely voluntarily to publicize,
as it would incur significant reputational harms. Congress, aware of this problem, observed that educational institutions’ reluctance to publicize the data
came at a time when “the proliferation of campus crime created a growing
threat to students, faculty, and school employees.”177 To incentivize compliance,
Congress not only tied reporting to institutions’ ability to participate in financialaid programs, but also provided for civil penalties against institutions that flout
the requirements.178 Imposing penalties on institutions that abuse FERPA would
operate in a similar way by encouraging the release of information that would
otherwise be kept private.
Overreliance on FERPA has come at a huge cost: it stymies investigative
reporting and allows universities to operate largely in secret. The proposal, put
forth by Penrose and other scholars, to amend FERPA to provide a clearer
definition of education records would start to solve the problem, but by itself it
would not be sufficient. Abuses have proliferated because the current incentive
structure strongly favors overcompliance with FERPA. This Note advocates
shifting these incentives through the imposition of penalties. FERPA has become an unpopular law among journalists, but its core goals—which include
protecting students’ privacy—remain laudable. The key, however, to a successful marriage between FERPA and open records laws is balance. This proposal
seeks to restore that balance.
175.
176.
177.
178.
See Stewart, supra note 13, at 293.
See 20 U.S.C. § 1092(f) (2006 & Supp. V).
See Havlik v. Johnson & Wales Univ., 509 F.3d 25, 30 (1st Cir. 2007).
See 20 U.S.C. § 1092(f)(13) (2006).