Law to shield student privacy is often misused, critics say

Aug 11, 2021 | News

By Taylor Harrison

The Family Educational Rights and Privacy Act became law in 1974 and required schools to enforce policies to protect the privacy of students’ education records.

But some people think it is being misused to protect university reputations.

Through the years, varying interpretations of FERPA regulations have led to accusations that some colleges use the law to cover up information about crimes committed on campuses — including serious felonies such as sexual assault.

“It’s a misuse of FERPA, and it’s widespread, and it’s a real problem,” said Carolyn Carlson, a former president of the Society of Professional Journalists who created a task force on the law.

FERPA has its roots in the 1970s at a time when government organizations such as the FBI, the CIA and others used student records as profiling devices to determine if students posed a threat to national security, said Frank LoMonte, executive director of the Student Press Law Center. Heightened law enforcement interest in college students came during the Vietnam War era, when the government did extensive spying on anti-war activists, research shows.

“It really was not at all contemplated that this would be about journalists or about public records requests,” he said.

LoMonte said FERPA protects grades, classroom attendance, academic transcripts and records from student judiciary hearings involving academic misconduct such as plagiarism or cheating.

In 1998, after work by SPJ’s Campus Courts Task Force, the Department of Education amended FERPA regulations to make it clear that FERPA did not protect student judiciary disciplinary records involving crimes of violence.

Still, many universities still refuse to give out student judiciary records involving violent crimes, Carlson said, or they handle requests for those records inconsistently.

“Schools have expanded their interpretation of FERPA to include just about every piece of paper that’s got a student name on it, even though they don’t meet the definition of an ‘education record’ under FERPA regulations,” Carlson said.

WKU provides an example of the inconsistency in how records are treated.

In October 2008, reports of shots fired on campus led to national media coverage for WKU. (It was later determined that no shots were fired but that a fight did occur.)

Information on the punishments of the students involved were requested but never released by WKU. According to a December 2013 article by Tessa Duvall, the university declined to release the names of those students and disciplinary records “as such records are exempt under the provisions of FERPA.” Duvall requested the records again in 2013, but the university would not provide them.

In another case, WKU did release information. In 2009, WKU former women’s basketball coach Mary Taylor Cowles issued a statement regarding student athlete Arnika Brown. A Bowling Green Daily News article reported that Brown had reached a plea agreement on felony charges that she used counterfeit money and that she wouldn’t face any student judiciary sanctions from WKU. In this instance, WKU issued a statement that included the name of the student and the disciplinary decision.

Carlson said universities and schools continue to withhold documents clearly not protected under FERPA. There are even instances of schools trying to withhold things without students’ names on them, such as a trip itinerary or lunch menus. More than once, schools have refused to release transcripts of public hearings held on campus because a student spoke, despite the hearing being open to the public, she said.

In 2002, the Supreme Court weighed in on a FERPA case involving K-12 schools after a parent claimed that students grading each other’s quizzes and calling out grades in class violated the law. In Owasso Independent School District v. Falvo, the court decided that FERPA only applies to records kept in a centrally stored database, such as a registrar or principal’s office.

“The Department of Education and schools and colleges across the country have just gone along pretending like that Falvo case doesn’t exist, and they’ve continued to act like FERPA covers anything and everything that mentions a student directly or indirectly,” LoMonte said.

Carlson said one main problem with FERPA violations is that there’s only one real punishment—the Department of Education withholds all federal funding to a school in violation. This scares schools, even though the Department of Education has never done it.

“The law needs to be changed to allow for . . . incremental punishments for minor violations of FERPA so that the Department of Education can enforce the law in a way that makes sense,” Carlson said.

LoMonte said when schools do misuse FERPA, they are issued a “corrective notice” from the DOE, which explains how to become FERPA compliant. If a school abides by the notice, they receive no penalty. A school would face a penalty if it violated FERPA and then purposefully defied the Department of Education’s notice, LoMonte said.

When Carlson formed the SPJ’s Campus Courts Task Force it was “mainly to make sure that members of the journalism community were aware that schools were hiding serious crimes behind the doors of their disciplinary systems.”

She said 30 journalism organizations and others banded together to inform SPJ members of the problem and to scrutinize FERPA.

Mac McKerral, a WKU journalism professor and a former SPJ president, served on the taskforce and chaired it for two years.

“It took five years to get any substantive change made in the law, and here we are 16 years later, and it’s still a problem,” McKerral said.

Carlson said FERPA definitely has been used to try to cover up crimes like sexual assault. The 1998 amendment would allow colleges to delay release until a final finding has been made that a student has committed a violent crime and all the appeals have been exhausted.

Still, reporting sexual assault and other crimes could lead to negative media coverage about campus safety, Carlson said.

“This has been one of the main reasons they’ve tried to keep the disciplinary systems secret, is to keep that kind of stuff in-house and, to me, the main reason they’ve done it all along is to protect the reputation of the schools and to avoid being seen as a place where this sort of thing happens,” Carlson said. “I think it’s dangerous, and it’s unfair to the students.”

Matt Gregory, president of the Association of Student Conduct Administration, which represents close to 3,000 members and more than 1,500 institutions nationwide, said he finds FERPA’s level of access appropriate.

Gregory, the associate dean of students and director of student advocacy and accountability at Louisiana State University, said he thinks FERPA is already rather permissive. Any document that a university maintains about a particular student that has to do with his or her educational achievements, records, academics or behavior is considered private and protected by FERPA, he said. From his side as an administrator, he hasn’t seen it interpreted differently.

He said there are exemptions under FERPA that allow administrators to share certain records, such as if they need to act or be the custodian of a record in the event of a health or safety emergency. Administrators can invoke an exemption to be able to reach out and contact someone who might be able to assist or manage the situation. If they are trained and understand how the law works, FERPA helps administrators do their job, he said.

“I don’t think there’s an intent to deceive,” he said. “I think that’s a lack of knowledge or training.”

Howard Bailey, WKU’s vice president for Student Affairs said he thinks FERPA works relatively well, especially once there was clarification about what information can be shared with a parent, guardian or primary financial provider.

Before FERPA, someone “could pick up the phone and call Western and say, ‘I know a young lady that says she’s about to graduate in December. What kind of grades has she got?’ And the school would tell them,” Bailey said.

But now, there is clarification that certain information can be shared only with an individual, such as a parent, whose income tax records are used for a student’s financial aid. That person can receive some information about records.

For example, Bailey said he worked with a parent whose child said that he or she was graduating – even though there was a strong chance the student would not. Bailey said he could not share the student’s grades, but he could strongly suggest that the father have a conversation with his child before the graduation date.

“It gives us a little flex room to kind of explain some things,” Bailey said.

LoMonte said there are efforts underway to further amend FERPA to push for more access and to address what third-party contractors with schools might be doing with student information. He said student data falling into the hands of private companies that do business with schools and colleges is a major concern.

The Student Press Law Center has developed a campaign called “Let’s Break FERPA” — encouraging students to ask universities for their FERPA-protected records.

“What we’re trying to prove is that colleges know what a FERPA record is when somebody shows up to exercise (his or) her own FERPA rights, and they know that it only includes those core academic records,” LoMonte said.

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