Right to Remain Silent

Congress had nobly stated intentions when it enacted sweeping student privacy laws nearly 35 years ago, but several elected officials now question whether the legislation has become a shield to hide embarrassing truths about college athletics and campus safety. Joining the growing chorus of skeptics is an organization that's historically been uninterested in calls for greater transparency: the U.S. Department of Education.

The Family Educational Rights and Privacy Act [FERPA] was enacted in 1974, seeking to guard “education records.” Many believe it’s become much more than that, however, serving as a blanket validation for secrecy. Paul Gammill, the recently named head of the education department’s Family Policy Compliance Office, says recent media reports detailing inconsistent enforcement of FERPA have convinced him the office needs to do more “outreach,” educating college officials about the law. That outreach would include meeting with officials at the National Collegiate Athletic Association, which routinely handles student records and has drawn critics for what some describe as selective obedience to FERPA.

“FERPA is designed and intended to protect the privacy rights of students and parents when it’s appropriate. That’s its main purpose,” Gammill said. “If institutions are using this inappropriately, that’s a concern for the department.”

A series of stories in the Columbus Dispatch revealed inconsistencies in how FERPA has been applied by college athletics departments, and raised questions about the NCAA’s citation of FERPA as a reason for not disclosing the names of students involved in infractions.

The NCAA requires student athletes to fill out a consent form, saying the students agree to disclose educational records to the association that are covered by FERPA. While the form says students “will not be identified by name” in published information, the agreement leaves vague whether the NCAA can disclose information potentially protected by FERPA when a student violates association rules. The NCAA uses this information for oversight of academic issues like graduation rates.

“We actually are trying to meet with them sometime in the next couple of weeks to understand what those [policies] are,” Gammill said Tuesday.

At issue for the Education Department is a single sentence in the student consent form, which reads: “You also agree that information regarding any infractions matter in which you may be involved may be published or distributed to third parties as required by NCAA policies, bylaws or procedures.” So what does this mean? Can the NCAA disclose students’ names if they commit infractions – even though that’s not standard practice?

“That’s a clarification we want to get from the NCAA,” Gammill said.

For staunch advocates of student privacy, the NCAA claiming authority to disclose educational records – even in cases of major infractions – might be troubling. For a growing group of First Amendment advocates and elected officials, however, the NCAA’s tendency to withhold information about wrongdoers is equally problematic.

In a recent letter to the education department, U.S. Sen. Sherrod Brown, D-Ohio, voiced concern about how colleges and the NCAA apply FERPA, saying “the public has not had access to important information about integrity in collegiate athletic programs. …”

In response to the letter, Gammill said “we want to make sure the senator’s concerns and desires get answered.” Ohio Attorney General Richard Cordray has also expressed frustration with FERPA, although the department said Tuesday that it had not received a letter from him.

Perhaps most significantly, even the lead author of FERPA, former U.S. Sen. James L. Buckley, has said “The law needs to be revamped." Buckley, whose leadership on FERPA has given the law the nickname "the Buckley Amendment," had envisioned a law that would keep academic information like students' grades out of public view. He now says he never imagined it would be so broadly applied.

NCAA Reserves Right to Disclose Info

The NCAA routinely issues sanctions and reports tied to violations of its rules without naming the students – or even the coaches, who aren’t covered by FERPA. The institutions under investigation are often even more restrained than the NCAA. Such was the case during a recent scandal at the University of Alabama, where athletes who were given free textbooks as part of their scholarships were accused of passing along those books to classmates. In its own report to the NCAA, the university blacked out the dollar value of the textbooks and the number of students involved, citing FERPA as a reason for hiding information that critics would argue the law was never intended to cover. The NCAA’s report on Alabama’s infractions, however, published both the dollar values and number of student violators. Names remained redacted in the NCAA’s report, too.

Since FERPA only applies to an “educational agency or institution,” the NCAA – a membership organization for college athletics programs – is not bound by it. As a matter of practice, however, the association abides by the law in the interest of maintaining good relations with its members and protecting its oversight function, a legal official said Wednesday.

While the burden of FERPA rests with colleges, the law states that a college cannot continue to disclose FERPA-protected information to a third party once it re-discloses the information. If a third party like the NCAA were to do so, the college would not be permitted to share educational records with the association for a period of five years, according to the law. As such, the NCAA would lose access to the very information it uses to calculate graduation rates or monitor students’ academic standing.

“Then we couldn’t do our jobs,” said Elsa Cole, the NCCA’s vice president for legal affairs. “The law applies to institutions of higher education, [but] we want to make sure the institution doesn’t run afoul with that.”

But the NCAA goes further than the law, refusing to publish the names of coaches, administrators or just plain human beings who happened to be referenced in reports. Cole cites two reasons for this practice, saying it helps protect confidential sources and accords with "common law privacy rights."

There are circumstances, however, where the NCAA reserves the right to disclose the FERPA-protected information it receives, Cole said. That’s where the student consent form regarding infractions comes into play. If a student or institution provides false statements tied to an infractions case, the association may choose to publicly discuss FERPA-protected information to correct the record, Cole said. This could happen if a student or institution made an untrue statement, or even if they omitted important information and “we just feel that a more complete story might be necessary,” Cole said.

In other words, the NCAA believes it can choose when it’s time to disclose FERPA-protected information, a luxury only afforded to colleges in rare emergency circumstances. On the other hand, there's precious little precedent for the NCAA doing that, according to Mark Jones,who worked on the NCAA enforcement staff for 18 years.

"It's really got to be something egregiously bad for the NCAA to go out and correct the record," said Jones, co-chair of the Collegiate Sports Practice at Ice Miller LLP.

What Is an 'Education Record,' Anyway?

Much of the debate over FERPA centers on what actually constitutes an “education record.” Critics of limited disclosure attach great significance to the term “education,” but the broader wording of the law describes the records as any that are “directly related” to a student.

“There is nothing that requires a record to be academic for purposes of FERPA,” said Steve McDonald, general counsel at Rhode Island School of Design and an expert on student privacy law.

FERPA places broad limits on what colleges are at liberty to disclose, and critics of those broad limits have a beef with the law itself – not its application, according to McDonald.

“There are some perfectly legitimate policy arguments to be made here on both sides, and if people want to make those that’s fine. The appropriate place to take those up is Congress,” he said. “I do think there has been inconsistent application on FERPA, but I don’t think it’s institutions trying to hide things; it’s institutions disclosing things they shouldn’t disclose.”

Others disagree. After the Education Department introduced new FERPA regulations last December, free press advocates bemoaned a new era for the law that they said would keep ever more important information out of the public eye.

“The Department of Education had its chance to fix what’s wrong with FERPA, and completely whiffed,” said Frank LoMonte, executive director of Student Press Law Center.

The newly written rules were in part a response to the Virginia Tech University shootings, which prompted the department to assure college officials that they could disclose FERPA-protected information when campus health and safety are at stake. But the rules went further, LoMonte said, making it more difficult for the public to even access statistical data about subjects as diverse as disciplinary policies and admissions patterns.

“What the department has now told schools is even if all the identifiable information [about students] has been redacted, it can still be withheld if you have some reason to believe the requester knows who they are asking about,” LoMonte said. “That flies directly in the face of core interpretations of FERPA.”

“I think it’s very dangerous when you give discretion to a school to start making judgment calls about what the requester does or doesn’t know,” he added.

LoMonte and others are hopeful the recent attention brought to FERPA will bring about some changes they say are overdue. That attention not only concerns big-time sports, but also parents who say they’ve been unable to access critical information about their children. In one such instance at the University of Kansas, the parents of a student who died of alcohol poisoning said they were never given details about their son's previous alcohol-related infractions at the university. The student, Jason Wren, refused to waive his FERPA rights for disclosure, and the university was therefore unable to share the information with his parents, Kansas officials said. [This information has been corrected from a previous version].

Stories like the Kansas example change the direction of the FERPA conversation, which has for so long centered on greater and greater efforts to keep information private – not on the costs of privacy itself, LoMonte said.

“To the extent that the department [of education] has heard from parents or members of the public at all [about FERPA] it has been from people who feel aggrieved about inadequate privacy,” LoMonte said. “It’s from people who feel their privacy had been compromised, and that has impacted the direction the department has chosen to take. Now what we’re seeing is ordinary citizens and parents suffering wrongful denials of their legitimate requests based on FERPA. Once you have parents being aggrieved … that’s what changes the debate.”