By Dennis Barbosa (@DennisBarbosa86)
It’s easy for colleges to save face and jump behind the Family Educational Rights and Privacy Act shield when the definition of education record is so all-encompassing. When Congress originally passed FERPA in 1974 the intent was to protect student privacy for educational records, but since then the statute has undergone such radical changes that a record does not need to be educational to be considered an education record.
Most Indiana colleges are still processing The Campus Citizen’s requests for disciplinary records involving violent crimes and nonforcible sexual offenses, documents permitted for release through FERPA’s 1998 amendment. A few have unofficially granted our request while others have denied it. With these inconsistent applications of FERPA to open records requests, one must wonder what the problem is.
From 1974 to 2001, FERPA has been amended nine times. James Buckley, former federal judge and author of FERPA, intended the law to be a shield for student privacy rights not something for universities to hide behind. “I am not so much concerned about the workload or convenience of the educational bureaucracy but, rather, with the personal rights of America’s children and their parents,” Buckley said in the 1974 Congressional Record. “What do the schools and federal agencies have to hide?”
Plenty is the answer
In 2012, an IU freshman was forcibly groped by another student in her dorm. Federal law defines a forcible sex offense as rape, sodomy, sexual assault with an object, and fondling. The university suspended him for two semesters and issued a no-contact order. One year later the freshman was shocked to see him again at her work place. When her manager called the police they arrived and said they could do nothing without a state-issued protective order. The freshman said she did not feel safe after that and was unaware her no-contact order did not hold any legal weight. When asked for comment, Amber Monroe, director of the IU Office of Student Ethics, declined and said in an email that FERPA prohibited her response to such inquiries.
“It’s overly broad to say that FERPA forbids discussing a situation entirely. That’s just wrong,” said Frank LoMonte, executive director of the Student Press Law Center. “I don’t think there’s a question that colleges take an overly broad interpretation of FERPA when it serves their purposes to conceal unpleasant information. It’s so commonplace for colleges to claim FERPA for the outcome of sexual assault cases, you have to assume what’s going on is that they don’t want the public to know how leniently they’ve treated these offenders.”
Ball State University said in an email that the requested records by The Campus Citizen were not locatable because the university does not compile records in that manner. But even if such records were located the university said they would be prohibited by FERPA because the information wouldmake student victims or witnesses easily identifiable. Without prior written consent, FERPA does prohibit victim and witnesses identities from being released. However, The Campus Citizen said records with such identities redacted would be acceptable. The university’s response remained unchanged. Purdue University replied in a similar manner. The university said in an email that they did not classify violations of its policies under FERPA terminology such as a violent crime or nonforcible sex offense. Federal law defines a “nonforcible” sex offense as statutory rape or incest. Purdue said therefore they had no meaningful way of determining which records were applicable to our request, but even if they could they would not be required under Indiana’s Access to Open Records Act.
The Campus Citizen requested a copy of records that show the names of individuals who were found responsible for a crime of violence or a nonforcible sex offense through a school disciplinary proceeding in 2012-2014, as well as the university rule the student was accused of violating, the sanction imposed, the date of the sanction and the sanction’s length of time. All this information is permissible for release by FERPA. According to Indiana’s open records law, a school is not generally required to create a list for an open records request if it doesn’t exist already. However, if the agency maintains electronic records they must make a reasonable effort to satisfy the records request.
“It’s a valid answer under state open records law to say that we just don’t have that document. That is a valid response if the document doesn’t exist,” SPLC director LoMonte said. “But in this situation, you really have to ask yourself: How is it possible that they don’t keep records in this way? That raises a really important safety question. If they don’t know the answer to who has been held responsible to crimes and how they’ve been punished, that seems like a huge flaw in their safety procedures.”
Tell Congress not colleges
Critics of the way media scrutinize colleges and universities for their use of FERPA say that the attention is misguided. If someone has a problem with FERPA protecting too many records the appropriate response is not to accuse schools of hiding behind the law but to address Congress to change the definition of education record.
“My own personal views, I wouldn’t have an objection to somewhat greater openness within disciplinary systems because I think people would find out that they are not jokes,” said Steve McDonald, Rhode Island School of Design general counsel. “I don’t necessarily disagree with the Student Press Law Center’s policy objectives, but their reading of FERPA is really odd. It’s more of wishful thinking. If they really want to change FERPA, they should really be addressing it to Congress.”
Even when taking McDonald’s stance on FERPA, addressing Congress still does not permit ignoring such noncompliance from schools in cases where it is clearly unwarranted. According to FERPA, an education record is broadly defined as being directly related to a student, and maintained by an educational agency or by a party acting for the agency.
“This is unfortunately a frequent occurrence even when we say to a university that a student or faculty member that we are writing on behalf of has signed a FERPA waiver to allow us to freely discuss their case with the university,” said Azhar Majeed, program director of Foundation for Individual Rights in Education.“FERPA is meant to be something that protects student rights and that’s something that’s used as shield by universities to prevent themselves from having to discuss a case or to acknowledge the fact that a particular act of censorship or punishment has taken place. So frequently what we will see is either a refusal to discuss a case altogether with us or, in a more limited sense, a university using FERPA as an excuse to not release a particular document or educational record.”
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