The Huffington Post’s Tyler Kingkade reported earlier this week on the disappointingly common practice of universities erroneously claiming that they cannot disclose information to the press, or in some instances to litigants, because of the Family Educational Rights and Privacy Act (FERPA):
“FERPA is widely misunderstood in higher education,” said [Jacob] Rooksby, a law professor at Duquesne University in Pittsburgh. “[Schools] often want to hide behind it — it’s the great boogeyman in higher ed.”
FIRE and our friends at the Student Press Law Center (SPLC) have long argued that institutions of higher education have been abusing FERPA to conceal documents from public scrutiny. As we have explained,
FERPA was written to protect students’ academic records from public scrutiny and publication. It was not intended to provide universities with a way to draw a curtain over all campus activity….
We’ve reported on numerous examples including instances of FERPA abuse at The Ohio State University, the State University of New York at Oswego, National College, Montana State University, and Florida State University, just to name a handful.
Kingkade highlights the problem:
In practice, what often happens is that a school will cite FERPA when explaining to journalists why it can’t say anything about a student’s misconduct or disciplinary case. If a school does run afoul of FERPA, officials worry the school will lose all its federal funding, meaning it could no longer accept research grants or student loans — even though this has never happened.
Check out pages 91–97 of FIRE’s Guide to Due Process and Campus Justice for information on how FERPA actually applies to records associated with allegations of serious campus misconduct.
Misuse of FERPA has gotten so out of hand that its author has urged institutions to stop playing games with the statute, and former Secretary of Education Arne Duncan talked to the SPLC about the problem in 2013, stating:
We always try to do our best to provide very clear guidance and try and strike that balance between absolutely maintaining privacy, but also as much as we can, absolute transparency. Where districts or schools are — I’m not saying they are — but if they’re sort of hiding behind FERPA and not sharing simple information, we’re happy to try and assist there.