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Kentucky Court Rejects National College’s Attempt to ‘Play the FERPA Card’

By on December 10, 2013

As Torch readers and followers of the Student Press Law Center’s (SPLC’s) work know, colleges and universities often cite the Family Educational Rights and Privacy Act (FERPA) when they refuse to disclose official records, even when those records could be easily redacted in order to protect students’ privacy and disclosed in compliance with FERPA. Last week, a Franklin County, Kentucky, circuit court judge made that card harder to play when he fined National College $126,000—$1,000 for each day it refused to disclose records subpoenaed by Kentucky attorney general Jack Conway.

The SPLC reported last week:

The attorney general’s office is seeking National’s records as part of an ongoing lawsuit that alleges National made deceptive advertising claims inflating the successful job-placement rate of its graduates. The college has been fighting Conway’s demand for records for nearly three years.

Having lost in court at every step, the college finally played “the FERPA card,” claiming that the documents Conway sought could not be produced without violating the Family Educational Rights and Privacy Act, which requires colleges to safeguard the confidentiality of student education records.

As we discussed here on The Torch last month, schools may not simply claim that disclosing official records would violate FERPA in order to avoid acquiescing to records requests. Where students’ identifying information is contained in a requested record, schools can simply redact or segregate that information in order to protect students’ privacy, and then comply with the request.

In the case of National College, two additional factors contributed to the state judge’s finding that National’s FERPA defense was “meritless.” As SPLC explained:

FERPA allows colleges to produce student records in response to a “lawfully issued subpoena.” … And … the records were protected against public re-disclosure under a court-issued protective order, so there was no risk that student information would be distributed beyond the AG’s investigative team.

Student privacy is important, but this is a fact pattern that would almost certainly earn “three Arne Duncans” on SPLC’s FERPA Fact blog for the records being “not protected by FERPA at all.” Of course, if National really wanted to do the right thing and not just conceal evidence that might point to its wrongdoing, it could have asked Department of Education Secretary Duncan himself what the appropriate course of action was.

Time will tell if the hefty fine will successfully send a message to other schools that FERPA is not a shield that can be used to protect virtually any damaging or embarrassing information from disclosure merely by invoking nebulous concerns over “privacy.” In the meantime, FIRE is glad to see this good result for students and other citizens interested in the lawsuit against National College.

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