‘Georgetown Law Journal’ Writer Proposes Stiff Penalties for Flouting FERPA

February 15, 2013

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In The Georgetown Law Journal, Georgetown University Law Center student Rob Silverblatt makes a worthwhile contribution to the steadily-growing body of literature critical of the widespread abuse of the Family Educational Rights and Privacy Act (FERPA) by America’s colleges. Though FERPA was enacted in 1974 for the purpose of protecting the educational records of students (such as their grades) from exposure to the general public, universities today routinely—and wrongly—use FERPA to block the release of public records they are obligated to provide at the public’s request.

Among the main points of Silverblatt’s note, titled "Hiding Behind Ivory Towers: Penalizing Schools That Improperly Invoke Student Privacy to Suppress Open Records Requests," is that universities have few incentives to properly comply with FERPA, because the consequences for failing to do so are minor. Litigation over what FERPA does and does not cover is relatively rare, and when universities are sued, they are easily able to absorb the associated costs while bringing themselves into full compliance with FERPA. As Silverblatt notes, "these incentives often result in schools staking out extreme positions rather than paying close attention to compliance."

Silverblatt suggests that Congress make universities face real financial consequences for abusing FERPA, subjecting universities to having a portion of their federal funding withheld if they are found out of compliance. I won’t go further into Silverblatt’s proposed mechanism for how such penalties would be calculated and assessed, and readers can debate his particular scheme’s effectiveness. I welcome the discussion, though, of how to make universities face real consequences for using FERPA to make a mockery of their duties, as public institutions, to be accountable to the public. 

Catch the full text of Silverblatt’s note here (PDF).