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Is That a Valid Use of Ferpa? The Student Press Law Center Is Watching

By  Michael Stratford
November 26, 2012

Anyone seeking records from a college or university in the past several decades has undoubtedly had his or her quest for information made more complicated, or even impossible, by a 1974 federal law, the Family Educational Rights and Privacy Act.

It happened recently at Butler University, where campus police declined to provide a newspaper with a copy of a report about a fight involving a pellet gun. In September, Hudson Valley Community College refused to release an incident report involving a member of the Student Senate who was arrested for threatening another student with a knife.

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Anyone seeking records from a college or university in the past several decades has undoubtedly had his or her quest for information made more complicated, or even impossible, by a 1974 federal law, the Family Educational Rights and Privacy Act.

It happened recently at Butler University, where campus police declined to provide a newspaper with a copy of a report about a fight involving a pellet gun. In September, Hudson Valley Community College refused to release an incident report involving a member of the Student Senate who was arrested for threatening another student with a knife.

In both of those cases, and in hundreds more each year, the institutions erred in invoking that law, called Ferpa, as a basis for denying a records request, according to the Student Press Law Center. The use of Ferpa to restrict access to information that should be made public has become so widespread, the center says, that this fall it started two online campaigns, Ferpa Fact and Break Ferpa, to highlight what it views as colleges’ abuses of the privacy law.

The Student Press Law Center, a nonprofit organization that provides guidance and legal counsel to student journalists, has long argued, along with other open-government advocates, that while Ferpa is well-intentioned—it’s meant to protect the privacy of students’ educational records—the way the law has been interpreted and applied enables colleges to use it as a catchall excuse to conceal information they wish to keep secret.

The U.S. Department of Education has taken steps to clarify a college’s obligations under Ferpa, in some cases changing the rules. But Frank D. LoMonte, executive director of the Student Press Law Center, says that such reforms have fallen short, and that colleges are still misapplying the law.

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A case at the University of Iowa was what sparked the center’s push for Ferpa reform, he says. In July, the Iowa Supreme Court ruled against a newspaper that was seeking redacted records related to an alleged sexual assault by Hawkeye football players. The court ruled that even though the two players had been publicly charged, and their identities were widely known, the university could still withhold the records if it believed that the newspaper knew the identity of the students.

“That was the point where, to us, the Ferpa train went completely off the rails,” Mr. LoMonte says. The intent of the statute was to prevent the release of students’ private information, but the ruling in the Iowa case, he argues, exposed Ferpa as an impediment to students’ seeing how a public university investigated two sexual assaults.

The Duncan-Head Scale

The center’s Ferpa Fact site rates how well a college applies Ferpa in a specific situation. The scale, indicated by the use of one to three photos of Secretary of Education Arne Duncan, assesses the legitimacy of an institution’s claim of Ferpa protection.

For example, Southeast Missouri State University recently sent a letter to students, faculty, and staff suggesting that they “keep in mind the restrictions” of Ferpa if they talk with news reporters about a former student who had been arrested for plotting terrorism. The problem? Ferpa creates no such obligation for students (unless they are also employed by the college), who are free to speak about their experiences with their peers. That earned the university a triple Duncan-head from Ferpa Fact, indicating an egregious misapplication of the law.

Other cases are less clear-cut. The law center doled out only a double Duncan-head—denoting “a questionable use of Ferpa"—to a Wilmington, N.C., high school after it declined to identify the age and grade level of a student who gave birth in a school restroom. Typically such directory information is not protected by Ferpa, but it it’s a gray area, the law center says, because it was tied to the fact of her having given birth.

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Another part of the campaign, called Break Ferpa, is meant to uncover hypocrisy in colleges’ interpretations of Ferpa on their own campuses. The site asks volunteers to “fight back” against Ferpa-based denials of requests for information by seeking all of their own educational records from their colleges.

Ferpa requires that students be able to inspect and challenge the content of their records, Mr. LoMonte explains. But many institutions have been so overly broad in defining what constitutes an “educational record,” in order to shield the information from public view, he says, that it would be nearly impossible for them to comply with the individual requests.

For example, an institution that erroneously defines a student’s postings on a student-government e-mail list as Ferpa-protected would, for consistency, have to search through countless e-mails in order to comply with that student’s request to inspect his own records.

The point is to show how onerous such a task would be, and to therefore illustrate how far the college overreached in declaring those records Ferpa-protected in the first place.

The Student Press Law Center’s primary goal in mounting the two efforts, Mr. LoMonte says, is to call policy makers’ attention to the problems with Ferpa. But the campaigns are also about shining a light on individual institutions that misinterpret the law, he adds.

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“Since so many schools are using Ferpa to further their public-relations, image-protection interests, we want, in a small way, to make the abuse of Ferpa a black mark on their public image,” he says. “We want people to feel there are public-relations consequences to the frivolous use of Ferpa.”

We welcome your thoughts and questions about this article. Please email the editors or submit a letter for publication.
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