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.
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.