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Federal privacy law should be deemed unconstitutional (essay)

Why FERPA Is Unconstitutional

September 13, 2012

We’ve known for a long time that the federal student privacy law, the Family Educational Rights and Privacy Act (FERPA), is disastrous for public accountability. Now we know that it’s almost certainly unconstitutional as well.

The threat of financial ruin that theoretically accompanies a FERPA violation – theoretically, because in the 38-year history of the statute, no one has ever been penalized for violating it – causes schools and colleges to irrationally withhold information from the public on the grounds of “educational privacy.” Even if the information is neither educational nor private.

Colleges have invoked FERPA to withhold records as benign and non-confidential as lists of athletes on scholarship and tape recordings of Student Senate meetings. And FERPA has become the default excuse to conceal wrongdoing by coaches, boosters or athletic-department tutors.

But the end of FERPA’s stranglehold on public records is in sight.

In National Federation of Independent Businesses v. Sebelius (the “Obamacare” ruling), the Supreme Court struck down a federal statute that conditioned federal financial subsidies – in that case, Medicaid funding – on complying with Congressionally mandated conditions.

The Court’s primary opinion, authored by Chief Justice John Roberts, traced the history of challenges to Congress’s authority to dictate policy through the Spending Clause in Art. 1, Sec. 8 of the Constitution.

Conditions attached to federal spending have been upheld as constitutional, the chief justice wrote, when they amount to “relatively mild encouragement,” such as the requirement to increase the drinking age to 21 as a condition of receiving federal highway aid.

But in this case, Roberts wrote, the coercive bargain – to greatly expand the rolls of Medicaid-eligible patients or forfeit every dollar of federal Medicaid funding – simply went too far: “[T]he financial ‘inducement’ Congress has chosen is much more than ‘relatively mild encouragement’ — it is a gun to the head.”

Mr. Chief Justice, meet FERPA.

The 1974 federal privacy statute, which requires all schools and colleges receiving federal money to enforce policies safeguarding the confidentiality of students’ “education records,” carries a (theoretical) wallop that is comparably knee-buckling to Obamacare’s: Violators forfeit their eligibility for federal education funding.

The federal government contributes 10.8 percent of the cost of K-12 public education in America. While the percentage of direct support is less at the postsecondary level, ineligibility for federal funding includes life-sustaining Pell Grants, a $35 billion-a-year program.

Because the Department of Education knows that withdrawing federal money would amount to burning the proverbial village to save it, the DOE has never come close to imposing the “fiscal death penalty” on a FERPA violator. In fact, it has enacted regulations to make certain that no school will ever be de-funded simply for honoring a public records request.
    
If documents are released in violation of FERPA, the DOE issues a “compliance plan.” Only if the department determines that the school will not voluntarily comply can financial penalties be imposed. (The Supreme Court has ruled that families aggrieved by the release of their records cannot sue under FERPA, so DOE sanctions are the only penalty.)

Congress enacted FERPA with good intentions: to keep misleading records of aptitude tests or disciplinary scrapes from coming back to haunt young people. FERPA entitles families to see these records on demand, to challenge their accuracy, and to insert clarifying material. And it makes those same records confidential for everyone but the family.

But FERPA went awry when it became the catch-all excuse for every school or college that finds disclosure inconvenient or embarrassing.

The default assumption under the law of every state and of the federal government is that individuals’ interactions with government agencies are a matter of public record and are subject to disclosure. Thus, when a person applies for a construction permit, receives a traffic ticket or incorporates a business, those transactions are transparent – even if the individuals involved would prefer otherwise – so the public can assess how government agencies are performing.

Public records are what enabled reporters from the Los Angeles Times to document massive waste and mismanagement in the L.A. Community College district’s $5.7 billion construction program. They’re what helped Chicago Tribune reporters document the existence of a backdoor admissions system for the underqualified children of VIPs at the University of Illinois, a scandal that helped topple UI’s president and most of its trustees.

Regrettably, school attorneys have become well-practiced at invoking the federal-funding bogeyman – at times in confoundingly frivolous ways – when faced with a demand for information they’d prefer to keep concealed.

In July, the Iowa Supreme Court denied a newspaper’s request to compel production of public records relating to the University of Iowa’s internal investigation of how rape accusations against two Hawkeye football players were handled.

The victim’s family complained that the university dragged its feet in investigating the attack. An independent law-firm investigation confirmed wrongdoing that led to the firing of two university vice presidents.

The players’ names have been in the national news for years; one pleaded guilty to assault and the other was convicted at trial. Yet the Iowa court put their “privacy” interests – in being felons – ahead of the public’s interest in memos and correspondence that could shed light on how Iowa responded to the victim’s complaints.

Because it’s possible to read FERPA to produce such absurd results – a literal reading of the statute makes “education records” absolutely confidential even if everything in them is already widespread public knowledge as a result of the student’s own criminality – it’s time to sweep the statute into the dustbin and start over.

Based on the Court’s June 28 ruling in NFIB, there are seven likely votes to invalidate FERPA. Dissenting Justices Anthony Kennedy, Antonin Scalia, Clarence Thomas and Samuel Alito used even stronger language than Roberts and his two co-signers in condemning the Medicaid expansion mandate: “If the anticoercion rule does not apply in this case, then there is no such rule.”

The dissenting justices even helpfully pointed out that, after Medicaid, the second-largest federal aid program is education, accounting for 12.8 percent of all federal assistance to states and 6.6 percent of the average state’s total yearly expenditures.

So, do states have a meaningful opportunity to accept or refuse education funding? Let’s ask America’s colleges and universities.

In 2011, the head table of American higher education weighed in behind the University of Illinois in a dispute with the Chicago Tribune over records of its secretive “clout admissions” program.

A federal district court decided that FERPA was no excuse for withholding the documents the Tribune sought. In a ruling that has since been vacated on appeal, the district judge ruled that FERPA is not an outright prohibition on disclosure, since a college can choose to accept or reject federal funding.

In the university’s successful appeal to the Seventh Circuit U.S. Court of Appeals, the American Council on Education and nine other education groups filed a supporting brief arguing that FERPA is, to use Justice Roberts’ words, “a gun to the head” of their member institutions.

They noted that 19.1 percent of the University of Illinois’ operating revenues comes from Pell Grants and other federal sources, the loss of which would be crippling if not fatal.

“As a practical matter, [educational] institutions have no real ‘choice’ in the matter as the federal government is the single largest provider of student loans and other student financial assistance for higher education, which funding serves as a central component in each institution’s budget,” the groups argued. “Given the fact that federal education funding comprises such a significant percentage of a school’s total operating revenue, the District Court’s conclusion that schools can simply discontinue receipt of those funds is not grounded in reality.”

Indeed, in its Supreme Court brief in NFIB, the government expressly cited FERPA as a Spending Clause condition analogous to the challenged Medicaid expansion – a condition that, if the Medicaid expansion fell, would be thrown into question.

FERPA is a “dead statute walking.” It relies on a coercive funding threat indistinguishable from that just declared unconstitutional in NFIB. Having acknowledged as much in the Illinois case, colleges and schools cannot retreat from that position when the inevitable constitutional challenge arises.
    
To be clear, striking down FERPA will not throw open genuinely private records that everyone agrees should be kept confidential. Grades, minor disciplinary scrapes and other non-newsworthy information still may be kept secret, because open-records statutes exclude information that clearly invades personal privacy.

With FERPA off the books, schools and courts will be free to make common-sense judgments as to when privacy has been waived – for instance, when a nationally known athlete admits committing a crime – and secrecy serves no rational purpose.

This balancing test – weighing, case-by-case, personal privacy against the community’s interest in disclosure – is the right way to protect legitimate confidences while giving the public the information essential to evaluating how its schools are being managed.
 

 

Bio

Frank D. LoMonte is a lawyer and executive director of the Student Press Law Center, a nonprofit organization based in Arlington, Va., that supports greater transparency in schools and colleges.

 

 

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