A few months back, a law-school professor at a major university got a routine request from a former student to write a letter of recommendation.
What happened after that was anything but “routine.”
Because the student was several years’ removed from the professor’s class, she went to the dean’s office and asked to pull his grade sheet, to verify that his performance in her course was worthy of an endorsement. Sorry, the dean’s office told her, grades are protected under federal privacy law, and you can’t see them.
But – it was my grade, the professor insisted. I wrote it myself. Sorry, she was told, no exceptions.
This is the kind of secrecy-run-wild lunacy that is gripping schools and colleges across the country, thanks for a federal privacy law, FERPA, that was so sloppily drafted by Congress that a literal-minded bureaucrat can define almost anything as a “confidential education record.”
FERPA, the Family Educational Rights and Privacy Act, was intended as both a mandatory disclosure statute (the “right” part) and a privacy statute. It requires all schools and colleges to enact policies safeguarding the privacy of “education records” – a term that Congress regrettably failed to define.
The U.S. Department of Education told the Supreme Court in 2002, accurately, that FERPA’s primary intent was to allow families to correct mistakes in school records that might be used to their kids’ detriment – in college admissions, in disciplinary proceedings, or even in court. But the DOE has failed to convey that narrow understanding of FERPA to the campus level.
The sanction for violating FERPA is revocation of federal education funding, a “financial death penalty” that is reserved for intentional repeat offenders. In the 38 years since Congress enacted FERPA, the DOE has never once penalized anyone a penny for violating it.
When schools claim that they cannot honor routine requests for public records because they will be put out of business by the DOE, they know – or should know – that 38 years of history says otherwise.
In the absence of guidance from Congress – or any rational consistency in interpretations from the DOE – schools and colleges have made up their own FERPA rules. Not surprisingly, they almost always err on the side of self-serving secrecy.
FERPA has become the knee-jerk response whenever journalists try to investigate tips about corruption in college sports. Ohio State University – which is fighting the sports network ESPN in court over access to documents about a football-program scandal that OSU claims are covered by FERPA – even tried to claim that emails between a coach and a booster were part of a Buckeye quarterback’s “education records.”
And the stakes run much higher than cheating at football. Real issues of student safety are being concealed behind the FERPA blackout curtain.
When a newspaper in Falmouth, Maine, heard that local teachers were excessively putting unruly students into wrestling holds, the paper hit the school district with an open-records request, asking how often students were restrained and what training the teachers were given. Every bit of the information – even information about teacher training – was withheld under a claim of “student privacy.”
If you are a parent whose child comes home from the daily bus ride beaten to a pulp, expect to be told by the school that you can neither watch the school bus surveillance video nor find out whether the attackers were disciplined – because that too is considered FERPA information.
Fortunately, state and federal courts have consistently interpreted FERPA in the common-sense way that its authors intended, and not in the ultra-literal way that some in the DOE and in school attorneys’ offices prefer.
In just the past year, for instance, school districts in Arizona and Massachusetts have been told that they cannot cry “FERPA” and refuse to turn over settlement agreements in which families are paid to drop their lawsuits against schools – documents that are necessary if the taxpayers are to know whether schools are being mismanaged.
And in North Carolina, a state-court judge told the University of North Carolina-Chapel Hill to hand over records that journalists needed to investigate possible academic and recruiting dishonesty in UNC’s football program, including parking tickets showing the type of cars athletes drive – tickets that UNC tried to conceal as “education records.” “FERPA,” the judge chided in his ruling, “does not provide a student with an invisible cloak so that the student can remain hidden from public view.”
Eventually, these court rulings will awaken the DOE and Congress to the reality that FERPA is a broken law. Until they act, the accountability of schools will remain needlessly obstructed, and student welfare will remain needlessly at risk.