Be Careful What You Wish For:
The Public Records Assault on FERPA
Steven J. McDonald
General Counsel
Rhode Island School of Design
1
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
2
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
3
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."
4
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."
• But see 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.")
5
FERPA
• The Family Educational Rights and
Privacy Act of 1974
• A.K.A. the Buckley Amendment
6
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"
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So, what's an "education record"?
8
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."
9
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."
10
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."
11
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"
12
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
13
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
14
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"
15
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.'"
16
We don'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"
17
Questions
(and maybe answers)
18
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
19
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
20
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
21
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
22
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
23
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
24
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
25
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
26
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
27
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
28
Questions
(and maybe answers)
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It's not academic
• Personal information submitted in an admissions
essay?
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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"?
32
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
33
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
34
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
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Questions
(and maybe answers)
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