The description of the report:

This Statistics in Brief applies IRS rules and data to a nationally representative sample of 2007–08 undergraduates to estimate who received education tax benefits and looks at the extent to which these benefits shaped their price of college attendance.

The report had the following three study questions:

1) What percentage of  2007–08 undergraduates  received an education tax benefit and to what ex­tent did these benefits reduce the overall price of college attendance?

2) Among dependent un­dergraduates, how did receipt of education tax benefits vary by family income?

3) Among dependent under­graduate tax benefit recipients, how did the ex­tent to which education tax benefits lowered the overall price of college at­tendance vary by family income?

Key Findings of the report:

• Nearly one-half of all 2007–08 un­dergraduates were estimated to have received an education tax ben­efit, reducing recipients’ average college expenses for the academic year by about $700.
• Low-middle-income and high-middle-income dependent under­graduates were estimated to have received tax benefits at higher rates than were low-income and high-income dependent undergra­duates.  The most common reason low-income dependent students did not receive a tax benefit was that they had no net tuition after sub­tracting the grant aid and veterans benefits they received.
• Low-middle- and high-middle­-income dependent undergraduate tax benefit recipients received higher average amounts in tax benefits than low-income and high-income de­pendent undergraduate tax benefit recipients.

Some provisions of the bill (from the House Committee on Veterans Affairs):

• Expands education and training opportunities for older veterans by providing nearly 100,000 unemployed veterans of past eras and wars with up to 1-year of additional Montgomery GI benefits to go towards education or training programs at community colleges or technical schools for high-demand jobs.
• Provides disabled veterans up to 1-year of additional Vocational Rehabilitation and Employment Benefits.
• Provides a tax credit of up to $5,600 for hiring veterans who have been looking for a job for more than six months, as well as a $2,400 credit for veterans who are unemployed for more than 4 weeks, but less than 6 months.

Topics covered include:

• State Authorization
• Retaking Coursework
• Credit Hour
• Ability-to-Benefit
• Incentive Compensation
• Misrepresentation
• Return of Title IV Funds
• Satisfactory Academic Progress
• Gainful Employment

This suit comes not long after the Office for Civil Rights announced it would investigate how Yale has handled sexual harassment and sexual assault cases under Title IX.

Regarding Yale’s response to the suit, as reported in this AP story: “Yale officials said in a statement Tuesday that the lawsuit had no merit and no additional security measures could have prevented the killing.”

Ultimately, if this case does go to court, which may not be likely, the question will be whether the institution knew or should have known that Clark was a dangerous threat.

For example, in the Los Angeles Times, an article about the case is entitled “Supreme Court allows California to grant in-state tuition to illegal immigrants.”

This article is entitled “U.S. Supreme Court Upholds State Law Guaranteeing Undocumented Immigrants Access to Higher Education.”

In the Herald-Mail, their article is entitled “Supreme Court ruling on Calif. immigrant tuition rates could affect other states’ policies.”

The Court didn’t decide the case on the merits.  In other words, it hasn’t said one way or another whether California legally can grant in-state tuition to illegal immigrants.  There has been no ruling.

The Court has however declined to hear the case, which means little from a substantive perspective.  Further, the Court declining to hear this case, when it is asked to hear more than 8,000 cases a year, means nothing.  Practically though, it is true that California, for now, isn’t being blocked from offering in-state tuition to illegal immigrants.

Other states may feel empowered to move forward with comparable laws since the Court didn’t shoot down the law (yet), but they do so with the likelihood that such a law violates federal law.

As a result, the DREAM Act won’t become law in this Congress, and its future is in serious doubt, at least in the next Congress.

There were numerous variations of the DREAM Act that have been introduced over the last few months.   In the past, the DREAM Act was associated with allowing in-state tuition to illegal immigrants regardless of whether the in-state rate was also provided to out-of-state residents.  This provision was removed from the bill.

How did the proposed DREAM Act work?

It provided a pathway to citizenship for illegal immigrants who (not exhaustive):

1) Entered the U.S. before his or her 16th birthday.
2) Been in the U.S. for at least five years prior to enactment of the law.
3) Have been a person of “good moral character” since being in the U.S.
4) Are not inadmissable or deportable for reasons such as criminality.
5) Been admitted into an institution of higher education or have earned a high school diploma or GED.
6) Was under 30 years of age at the time of enactment of the legislation.
7) To maintain pathway to citizenship, must have earned a degree or have completed at least two years in a bachelor’s  degree program (or higher).

What is Being Said About the DREAM Act and its Defeat

• Federation for American Immigration Reform Statement on Defeat of the DREAM Act
• FAIR DREAM Act Page
• National Immigration Law Center Statement on Defeat of the DREAM Act
• NILC DREAM Act Information

To help increase the number of responses, CLHE sent out emails to members and various listserves of interest to college and university administrators.  It should be noted that subscribers on these lists are not limited to administrators, and likely include private lenders.

The results are represented in the following pie chart:

As can be seen, most respondents opposed the elimination of the Federal Family Educational Loan Program (FFELP).  62 percent of the respondents believed FFELP should not have been eliminated.

This compared to 33 percent of the respondents who believed the program should have been eliminated.

By close to a 2 to 1 margin (58 to 30), respondents believed FFELP should not have been eliminated.

There normally would be no reason to be too concerned about such a resolution but in light of the significant erosion of privacy rights under FERPA and the media’s sympathetic spin on the alleged weaknesses of FERPA, this issue deserves attention.

The fundamental problem that the SPJ gets wrong is not understanding the purpose of FERPA, or at least ignoring the purpose to achieve their own objectives of gaining better access to personally identifiable information of students.

SPJ’s Misunderstanding of the Law

The following are several of the “Whereas” clauses in SPJ’s resolution.  These clauses explain the “facts” at least as understood by SPJ. Here are some comments on a few things SPJ wrote:

SPJ: Whereas, the Family Educational Rights and Privacy Act of 1974, called “FERPA,” was intended to protect students from embarrassment by having financial aid information or academic records released to the public.

Comment: This is contrary to the plain language of the FERPA statute and this attempt to argue that FERPA protects only a limited set of records has consistently been rejected by courts (see e.g. United States v. Miami University).  The broad understanding of an “education record” is supported by the United State Supreme Court decision in Owasso Independent School District v. Falvo.

An education record is defined in the statute as any record directly related to a student and maintained by an institution.

Institutions may not disclose personally identifiable information from education records without the prior consent of students or under other narrow circumstances as established by statute.

There is no distinction between “embarrassing” personal identifiable information and non-embarrassing personal identifiable information.

SPJ: Whereas, educational institutions from schools to universities have expanded the purview of FERPA beyond reason to make other types of records secret, including athletic budgets, parking tickets and school lunch menus.

Comment: If any of these records are directly related to a student and maintained by an institution, then an institution is properly following the law.

SPJ: Whereas, the U.S. Department of Education interprets the law beyond its intent, thus allowing school officials to hide entire records, even with names redacted, if they suspect a journalist might identify someone named in the records.

Comment: The Department interprets this law based on the statute not on what the SPJ and other organizations would like us to believe the intent of the law is.  If anything, the Department has weakened FERPA through recent interpretations of the statute, as seen in its December, 2008 final regulations.

Of course institutions must redact names, and if redaction will not suffice to protect student privacy, as often is the case, journalists can’t have access to those records.

SPJ: Whereas, former Sen. James L. Buckley, who crafted FERPA, stated in the Columbus Dispatch series that “That’s not what we intended. The law needs to be revamped. Institutions are putting their own meaning into the law.”

Comment: If this is true, then Senator Buckley should have drafted language that was consistent with what he claims is the intent of the law.  Further, the understanding of one legislator more than 30 years after passage of the law is far from persuasive regarding intent.

What SPJ Wants

According to the resolution, SPJ:

1) Urges Congress to clarify FERPA to exempt from disclosure only information that would explicitly link financial aid information, poor grades, non-criminal disciplinary records or other deficient academic performance with specific identifiable students.

Comment: If Congress took this action, the following would no longer be protected:

• Social security numbers
• “Good” grades
• Identification of victims of sexual crimes
• Health records (in some instances)
• Private emails
• Web sites visited
• Books checked out of the library
• Papers and work assignments
• Directory information (students could no longer withhold the disclosure of this information)
• Tracked purchases at institutional facilities
• Phone call records
• Financial information not connected to financial aid

I think this list makes the point—institutions maintain a significant amount of information on students well beyond what SPJ apparently thinks they do.

2) Urges Congress to shift responsibility of the records portion of FERPA interpretation and implementation from the Department of Education to an agency more knowledgeable about records policies, such as the National Archives and Records Administration.

Comment: There is a significant amount of institutional memory and understanding that is developed over 30 years of enforcing a law.  This understanding of the law is critical in applying the law to new and often unusual situations that may arise.

The Department of Education has that experience with the law.  Even if SPJ thinks FERPA should be changed, this does not justify taking enforcement power away from the agency that knows the law.  There would be a huge learning curve if another agency enforced the law and years of precedent could go out the window as institutions struggle to understand new interpretations of the law.  Compliance problems would only serve to hurt students.

While not expressly stated, the SPJ does not want the Department to enforce the law because it apparently is not qualified or capable to do so, possibly due to political pressures.

When institutions decline to disclose records with the indirect or direct backing of the Department, the SPJ thinks FERPA is being abused by institutions to hide something—it consistently fails to recognize that the law is a broad law with strong privacy protections.  The Department and specifically the Family Policy Compliance Office is charged with protecting student privacy, not with making sure journalist have access to records.

If institutions fail to comply with FERPA, there are potential repercussions such as the loss of federal education funds.  The Department must continue to enforce the law because, unlike NARA, it is responsible for education funds.

NARA exists to maintain the government’s records.  This is its purpose.  The Department of Education does not maintain education records for institutions—the institutions themselves maintain the records.  If institutions needed an agency to maintain records for them, then NARA could be a good idea.

The Department ensures that institutions properly comply with FERPA—NARA’s recordkeeping mission is completely unrelated to enforcing FERPA.

Conclusion

FERPA is not an open records law.  It is a groundbreaking federal privacy law that has existed since 1974.  SPJ may have some legitimate concerns about how FERPA is applied in practice.  There will of course be instances when institutions misunderstand the statute and apply it too broadly, but this is a matter of better education not a matter of wholesale changes to the statute.

Greater transparency in government is very important, and possible new mechanisms should be considered to ensure that records are not being withheld without a proper reason.  SPJ should focus on specific concerns instead of making misguided statements about how institutions and the Department are systemically abusing FERPA.

Institutions (and for that matter, the Department) should stop playing defense when it comes to FERPA.  The misimpressions of FERPA and how it is being implemented undermines institutions and most importantly the students the law is supposed to protect.

The Court applied the “Lemon test,” which was developed by the U.S. Supreme Court to analyze establishment clause cases.  This third prong of the test was applicable to this case: whether the state statute fostered “an excessive government entanglement with religion.”

The Court held that the delegation of power to Davidson College was a violation of the First Amendment.

However, the opinion may not be all bad news for Davidson College:

1) The Court didn’t seem convinced that Davidson was a religious institution for Establishment Clause purposes but felt bound to conclude that it was because of past NC Supreme Court precedent.

2) In North Carolina, a unanimous decision (such as this case) by the Court of Appeals precludes an appeal as a matter of right to the NC Supreme Court.  The Court of Appeals went out of its way though to urge the Supreme Court to grant review of this case.

This certainly is a case worth following for institutions across the country–while it isn’t controlling precedent on other states, it could be influential if and when other states take up similar issues.

In a somewhat surprising decision, the Court ruled in favor of UC-Hastings School of Law.  The law school had a nondiscrimination policy that denied the Christian Legal Society chapter on campus the status of being a recognized student organization if the group prohibited students from joining that were engaged in “unrepentant homosexual conduct.”

The Court posed the question this way:

May a public law school condition its official recognition of a student group—and the attendant use of school funds and facilities—on the organization’s agree­ment to open eligibility for membership and leadership to all students?

The majority held that a public law school could do so and it doesn’t violate the group’s First Amendment rights.

Justice Alito, writing in his dissent, argued:

The proudest boast of our free speech jurisprudence is that we protect the freedom to express “the thought that we hate.”  Today’s decision rests on a very different principle: no freedom for expression that offends prevailing standards of political correctness in our country’s institutions of higher learning.

The Hastings College of the Law, a state institution, permits student organizations to register with the law school and severely burdens speech by unregistered groups.  Hastings currently has more than 60 registered groups and, in all its history, has denied registration to exactly one: the Christian Legal Society (CLS). CLS claims that Hastings refused to register the group because the law school administration disapproves of the group’s viewpoint and thus violated the group’s free speech rights. [Internal citations omitted]

CLHE will analyze the implications of the case for members.