According to the Associated Press, Wyoming State District Judge Peter Arnold has granted a request by Laramie County Community College to prevent the publication of "an internal report about [the] college president’s trip to Costa Rica" as a student chaperone because the release of the report might violate the Family Educational Rights and Privacy Act (FERPA) and therefore imperil the school’s federal funding. The Wyoming Tribune Eagle and The Cheyenne Herald have been ordered not to release details about the report for at least ten days.
Who knew that imperiling a Wyoming community college’s federal funding was a graver risk to the republic than, say, releasing classified information at the highest level of government? In the famous case of New York Times Co. v. United States, 401 U.S. 713 (1971), the Supreme Court ruled that The New York Times and The Washington Post could not be prevented from publishing a classified government report on the Vietnam War that came to be known as the Pentagon Papers. This was despite the fact that the report was in fact classified and that its release arguably had implications for America’s national security.
It is bewildering that, given this precedent, Judge Arnold would find the prospect of a community college losing federal funding to be a sufficient harm to justify ignoring the First Amendment’s guarantee of freedom of the press. Not only that, but Arnold’s decision seems to be based on factual assumptions that are completely wrong. Frank LoMonte, Executive Director of the Student Press Law Center, explained these mistakes on the SPLC’s blog:
The college’s argument — that the U.S. Department of Education would punish the college for not stopping the document from falling into the newspaper’s hands – is frivolous on multiple grounds. FERPA penalizes only the disclosure of confidential information by the school — not by an unrelated third party such as a newspaper. (The law is quite clear that journalists may freely publish documents leaked by confidential sources, even if the leaker may himself be in trouble for violating his employer’s rules, or even breaking the law.)
Moreover, a state court in Florida just recently addressed and rejected a comparable FERPA argument in a dispute over access to Florida State University’s correspondence with the NCAA. In that case, NCAA v. The Associated Press, Florida’s First District Court of Appeal ruled in October 2009 that a public university must disclose records of its internal investigation into alleged preferential treatment of student-athletes. The court rejected the NCAA and Florida State’s claim that such investigative reports qualified under FERPA as "student educational records."
"By the language of this statute, a record qualifies as an education record only if it ‘directly’ relates to a student. … [T]hese records pertain to allegations of misconduct by the University Athletic Department, and only tangentially relate to the students who benefitted from that misconduct," the court held. The Florida ruling is consistent with the limited, common-sense way in which courts have always interpreted FERPA; none has ever taken the ultra-literal interpretation that Laramie County Community College is attempting to peddle.
If it has even halfway competent lawyers, Laramie County Community College must know that whether or not a newspaper publishes an educational record has nothing to do with whether or not FERPA has been violated. I can think of no other reason than Laramie County Community College President Darrel Hammon’s embarrassment about what must be in this report as an explanation for why the college would ask the court to censor not one but two local newspapers, in flagrant disregard of the First Amendment. Judge Arnold’s order should be overturned immediately.