Frank LoMonte: ‘Why FERPA Is Unconstitutional’

By September 13, 2012

Today over at Inside Higher Ed, the Student Press Law Center’s Frank LoMonte has an interesting take on the recent Supreme Court decision in NFIB v. Sebelius (commonly known as the "Obamacare" ruling) and its implications for the Federal Educational Rights and Privacy Act (FERPA). Here’s the crux of LoMonte’s argument:

In National Federation of Independent Businesses v. Sebelius (the "Obamacare" ruling), the Supreme Court struck down a federal statute that conditioned federal financial subsidies – in that case, Medicaid funding – on complying with Congressionally mandated conditions.

…[I]n this case, Roberts wrote, the coercive bargain – to greatly expand the rolls of Medicaid-eligible patients or forfeit every dollar of federal Medicaid funding – simply went too far: "[T]he financial ‘inducement’ Congress has chosen is much more than ‘relatively mild encouragement’ – it is a gun to the head."

Mr. Chief Justice, meet FERPA. 

The 1974 federal privacy statute, which requires all schools and colleges receiving federal money to enforce policies safeguarding the confidentiality of students’ "education records," carries a (theoretical) wallop that is comparably knee-buckling to Obamacare’s: Violators forfeit their eligibility for federal education funding.

Indeed, since the June 28 Supreme Court ruling, commentators have been wondering if the doctrine of "unconstitutional conditions" has been revived. In the educational context, while the federal government cannot legally directly regulate education, it can provide Pell grants and other federal aid to universities. The federal government can also condition that money on compliance with FERPA, with Title IX, and with a host of other statutes. LoMonte’s article raises the question: At what point do these conditions go too far?

As the Chief Justice wrote when declaring portions of the health care law as illegal: "In this case, the financial ‘inducement’ Congress has chosen is much more than ‘relatively mild encouragement’ — it is a gun to the head." What was the "gun to the head"? Well, it was the threat of losing about 6.6% of an average state’s funding if it failed to comply. 

And if the health care law was unconstitutionally coercive at 6.6%, LoMonte argues, FERPA is even more coercive, because non-compliance with FERPA threatens a far greater share of the average university’s budget. For example, non-compliance with FERPA would threaten 19.1% of the University of Illinois’ operating revenues!

Certainly federal conditions on educational grants can lead to FIRE issues, involving FERPA as well as other laws. LoMonte’s argument is a thought-provoking one. Check it out!