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.
One public university in Wisconsin, for example, refused to give out records of government meetings if any committee member was a student—even though the meetings were open for public attendance. A college in Michigan told a defeated candidate for campus office that he couldn’t have his own vote totals because of Ferpa. Many other institutions, as documented in a 2009 series published in The Columbus Dispatch, have labeled reports of violations of National Collegiate Athletic Association rules as confidential “education records.”
The U.S. Department of Education should be ensuring the integrity of Ferpa by insisting on a rational interpretation that balances the competing priorities of openness and privacy. But it has abdicated that role. Indeed, it insists that it has no duty to take public accountability into consideration when interpreting Ferpa. The department has maintained in public filings that Ferpa “is not an open-records statute.” Of course it isn’t. But the 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.
In 2008 the Education Department began rule-making sessions to update how it interpreted and carried out Ferpa. Groups representing journalists bombarded the department with horror stories of being denied open-records requests, either because agencies were legitimately confused by Ferpa or were simply feigning confusion to obstruct access to embarrassing documents.
The department’s response? It actually made Ferpa worse. Colleges were told to read the minds of those requesting documents. If that mind-reading exercise discerned that the requester had a particular individual in mind, then the institution was told to deny the request, even if there was nothing private or identifying in the document.
To illustrate, the department published this example: A political candidate is alleged to have been disciplined for academic dishonesty while a college senior. A reporter asks the college for redacted records showing not who but how many people were punished for cheating during that senior year. The college is to deny the request because the requester has a particular person in mind.
In reality, the statistic gives away nothing. Suppose the number is “one.” Does that reveal any information linkable to any student? Or four, or 10, or 60? No, the only statistic that tells the reporter any useful information is the number zero, which exonerates the candidate of the accusation. So, to be clear, it is the Education Department’s position that the fact that nobody in Candidate Smith’s senior class got punished for cheating is nondisclosable private information. Sorry, but that’s nuts.
Consider the department’s interpretation last year involving the records of a $1.6-million “discretionary scholarship” program at the University of Central Arkansas. The university’s former president reportedly directed the scholarships to relatives of trustees and politicians. The institution, citing Ferpa, has strenuously refused to disclose who received the scholarships, even though colleges—including Central Arkansas—regularly disclose other scholarship winners when they think the awards reflect glory on the institutions.
Ferpa enables colleges to declare certain records fair game for disclosure if they contain mere “directory information.” One category of exempt information is “honors and awards,” and Central Arkansas has used that exception regularly to release the names of other scholarship recipients.
The Arkansas Democrat-Gazette invoked state open-records law to request the names of those receiving scholarships under the now-discontinued program. Access to those names is the only way to determine which politicians took advantage of the sweetheart program, a matter of undeniable public concern. Since other scholarship awards are made public as “directory information,” the newspaper figured, those should be, too.
Not so fast. Central Arkansas says these scholarships are different. They are neither “awards” nor “honors” because they were dispensed regardless of merit.
Surely, the Democrat-Gazette believed, that argument would gain no traction with the Education Department. It was wrong. In a May 2009 ruling, the department bought the university’s reasoning. If the scholarships were based on merit, then they were disclosable as “awards.” Since they were not, they’re confidential education records.
In other words, if a scholarship award discloses that a person is a good student, then it’s a matter of public record. If a scholarship award tells us nothing about the recipient—she could just as easily be a C student as an A student—then it is confidential. A victory for literalism, a loss for common sense.
In April, the department announced that it will again propose rules clarifying Ferpa this summer, but the preliminary notice gives no hope of wholesale reform. Rather, the focus appears limited to facilitating data collection that the Obama administration believes is necessary for education reform. That would be a colossal missed opportunity.
The fault in Ferpa begins with a poorly worded statute. The law begs to be misapplied by defining educational records as those that “contain information directly related to a student.” And the statute carries a knee-buckling potential penalty: the loss of all federal education support. With the lopsided incentive system—reveal too much and your institution risks the financial death penalty; reveal too little and you might get a court order directing you to disclose—colleges almost invariably err on the side of secrecy.
Instructively, the courts have been almost unanimously unsympathetic to the Education Department’s expansionist view of Ferpa. In the most recent judicial gloss on Ferpa, a federal district judge in California made clear that not every scrap of paper—or bundle of electrons—that mentions a student is a Ferpa “educational record.”
In S.A. v. Tulare County Office of Education and California Department of Education, a student’s family asserted that Ferpa obligated an elementary school to produce every archived teacher e-mail message about their child. In a September 2009 ruling, a U.S. district judge in the Eastern District of California disagreed. Ferpa, the court held, entitled the family to review only those e-mail messages about the student printed and placed in the student’s “permanent file” in a central repository: “Ferpa does not contemplate that education records are maintained in numerous places. ... Congress contemplated that education records would be kept in one place.”
It is often overlooked that, as in the S.A. v. Tulare case, Ferpa is about a right of access to one’s own records as well as the right to privacy. The right of confidentiality should logically be no broader than the right of access. If a student presents herself at the dean’s office asking to see her “educational records,” the institution does not respond with a campuswide search for the audiotapes of all meetings she has attended. Rather, it understands “educational records” to be the subset of materials—grades, attendance sheets—to which most people agree Ferpa was properly directed.
What is good about Ferpa—protecting against unwarranted disclosure of students’ academic information —can be salvaged by more coherently defining the scope of information it covers. One approach would simply square Ferpa with the existing standards under state law that determine when an invasion of privacy rises to the threshold of being legally actionable. Records otherwise subject to disclosure under a state public-records law could be withheld if their contents would cause extreme embarrassment, unless the disclosure is privileged—for example, because the contents are newsworthy.
Another approach would import into Ferpa a balancing test that weighs public interest against privacy. The federal Freedom of Information Act and many of its state analogs permit institutions to withhold information if release of it would result in “a clearly unwarranted invasion of personal privacy.” Colleges would have leeway to make rational judgment calls in cases like the one at Central Arkansas, where the public’s interest in honest government outweighs whatever slight privacy interest exists in receiving a (perhaps undeserved) scholarship.
Alternatively, Congress could simply enact clarifying amendments to bring Ferpa’s scope in line with common-sense notions of the legitimate scope of privacy:
- To be a confidential record, the document must actually contain information that is not already in the public domain.
- “Educational records” means just that: records about education. Ferpa would not apply to dealings between a student and an institution when the student is simply acting as a member of the general public—when he parks in front of a fire hydrant, or applies for a job.
- The penalty for violating Ferpa is not the all-or-nothing remedy implied by the statute today. The Education Department needs—and as a practical matter, probably already has—authority to issue warnings and token fines as an alternative to the financial death penalty, so that the incentives do not tilt quite so markedly against disclosure.
The Obama administration should readily embrace Ferpa reform. The president marched into office on a promise of openness, but hyperliteral applications of Ferpa are obscuring the public’s ability to hold colleges accountable.
Most administrators would agree that Ferpa is needlessly confusing. They too would benefit from a narrower interpretation of Ferpa. Indeed, everyone would—except the few institutions that enjoy having leeway to conceal unpleasant facts.
