Last year, a University of Georgia student wrote disparaging (but not threatening) personal comments about his professor in his anonymous course evaluations both semesters. The professor examined the student’s handwriting and identified him. The professor also notified the university, which brought in a handwriting expert to verify that the identified student was the writer of the evaluations. This fall, the student was punished and forced to apologize. I want to say no more about the student because his anonymity has already been violated—not just by the professor but also by the university, and then by the student newspaper. Indeed, the University of Georgia actually released the student’s disciplinary record to the student newspaper, citing a 1993 decision of the Georgia Supreme Court that distinguished disciplinary records from other educational records in the context of student organizations. The problem here is that according to the U.S. Department of Education (DOE), the U.S. Supreme Court has declared that the Family Educational Rights and Privacy Act (FERPA) does protect “records regarding student misconduct.” In a 2002 letter, DOE made the point clearly (emphasis added):
We are aware that in 1993, the Supreme Court of Georgia concluded that records of disciplinary proceedings of the University of Georgia were “not the type” of records FERPA was “intended to protect.” Red & Black Publishing Company v. Board of Regents, 427 S.E. 2d 257, 261 (Ga. 1993). We believe that decision is inapposite for several reasons. On its face, the records sought in that case pertained to organizations, not individual students [footnote omitted]. Moreover, the United States Supreme Court recently decided the case of Gonzaga University v. Doe, No. 01-679 (June 20, 2002). There, the disclosure at issue pertained to allegations of “sexual misconduct.” While the Court ultimately held that FERPA’s nondisclosure provisions create no rights enforceable under 42 U.S.C. § 1983, there was no dispute that records regarding student misconduct are subject to FERPA. Since disciplinary records pertain to student misconduct, the United States Supreme Court has, in effect, overturned the decision in Red & Black. Further, as noted above, Red & Black, which was decided in 1993, was overtaken by Congressional action in 1998 through the enactment of section 951 of Pub.L. No. 105-244. Finally, we note that on June 27, 2002, the United States Court of Appeals for the Sixth Circuit unanimously affirmed a lower court’s ruling that university disciplinary records are “education records” under FERPA and that disclosing such records without students’ consent constitutes a violation of FERPA. United States of America v. Miami University; Ohio State University, et al., 294 F.3d 797 (6th Cir. 2002). Although we realize that Georgia is not in the Sixth Circuit, this decision is consistent with the Supreme Court’s decision in Gonzaga and would be highly persuasive to the Federal courts in Georgia.
In fact, when FIRE wrote Georgia’s Valdosta State University (VSU) about the unwarranted expulsion of student T. Hayden Barnes, VSU’s Associate Vice Chancellor initially replied that VSU would not discuss the “administrative withdrawal” of Barnes with us because of its obligations under FERPA. As the law states, a university may only release student disciplinary records (with certain exceptions) when the student has expressly waived his or her right to keep them private. Not only should the University of Georgia reverse its policy of breaking anonymity on course evaluations in the case of constitutionally protected expression, but administrators there apparently need a refresher on some of their legal and moral obligations.