Federal Judge Limits Use of FERPA

U.S. court says federal student privacy law does not forbid University of Illinois from releasing records about applicants.
March 10, 2011

A federal judge's ruling may make it harder for public universities to cite a federal student privacy law to deny requests for information by reporters or others.

The decision, by U.S. Judge Joan B. Gottschall of the Northern District of Illinois's Eastern Division, came in a lawsuit filed by the Chicago Tribune in 2010, in the wake of its 2009 series "Clout Goes to College," which examined the University of Illinois's now-dismantled "clout" admissions system in which trustees and senior administrators pressured admissions officers on behalf of politically connected applicants. The series prompted the resignation of the university's president and other officials and a revamping of its governing board.

In a December 2009 request under Illinois's Freedom of Information Act, a Tribune reporter sought a list of applicants, their parents, and the names of anyone who intervened on the candidates' behalf -- a request that university officials rejected, citing several state laws and the Family Educational Rights and Privacy Act, the federal law that protects the privacy of students' educational records. (Colleges commonly reject information requests citing the law, known as FERPA -- too commonly, in the eyes of some journalism advocates.)

The newspaper sued in January 2010, asking the court to decide only one narrow question: Does the federal law, known as FERPA, bar the release of the requested records?

University officials insisted that it did. The state FOIA law, they argued, contains an exemption for "[i]nformation specifically prohibited from disclosure by federal or state law or rules and regulations implementing federal or state law." And FERPA, Illinois administrators said, states that "[n]o funds shall be made available under any applicable program to any educational agency or institution which has a policy or practice of permitting the release of education records (or personally identifiable information contained therein ...) of students without the written consent of their parents to any individual, agency, or organization...."

That combination meant that the university could not release the records without violating the federal law, Illinois officials asserted.

The Tribune made a series of arguments in favor of the records' release, including that the documents were not "education" records (but rather evidence pertaining to "possible misconduct and politically motivated favoritism by public officials"), and that the applicants' files were not the records of students, but of potential students. But the court focused on a third assertion, which is that the federal law does not in any way prohibit the release of educational records, and hence cannot be cited as an exemption to the state open records law.

FERPA, enacted under the U.S. Constitution's Spending Clause, "does not forbid Illinois officials from taking any action," Judge Gottschall wrote. "Rather, FERPA sets conditions on the receipt of federal funds, and it imposes requirements on the Secretary of Education to enforce the spending conditions by withholding funds in appropriate situations.... Illinois could choose to reject federal education money, and the conditions of FERPA along with it, so it cannot be said that FERPA prevents Illinois from doing anything."

Journalism officials heralded the decision, which Frank LoMonte of the Student Press Law Center called "enormously significant."

"It establishes, as a matter of law, what a lot of us have believed for a long time: that FERPA doesn't excuse your compliance obligations under state law," he said.

Many college officials are all too eager to find reasons not to make documents available to reporters and the public, said LoMonte, and are quick to seize on exceptions like those in the Illinois FOIA law.

Because the Illinois law is similar to laws in numerous other states, said LoMonte, the law center's executive director, "this has real potential to rein in the widespread abuses we've seen where FERPA is frivolously raised as an obstruction to newsworthy records requests."

Not so fast, some other legal experts said. S. Daniel Carter, director of public policy for Security on Campus, which advocates for victims of campus violence, said he agrees that the federal privacy law has "inappropriately been interpreted overly expansively" by college officials, as a "catchall for saying 'we can't or don't want to release anything that makes us look bad.' "

He also said he believes the court correctly decided the Illinois case, from a literal standpoint. "FERPA is not a federal mandate," although some Education Department officials have historically seen it as one, he said. "An entity can elect not to enter into the agreement" that imposes FERPA's requirements, by choosing not to take federal student aid.

But Carter said he thinks it unlikely that the Tribune case will significantly change the balance of power between colleges and other holders of information and newspapers and other seekers of it, even if the Illinois case ends up being upheld on what are almost certain to be future appeals. That's because "I believe that most state legislators have intended to include FERPA in their exemption to state FOIA laws," he said.

And while only a few states (including Florida) have already amended their open-records laws to provide exceptions for the federal law, many others would probably do so, Carter said, if a court decision like the Illinois one tells states "you can either amend your law or all your colleges can no longer be eligible to award federal financial aid.... I think you'd see a lot of legislatures changing their laws so they specifically refer to FERPA."

Steven D. McDonald, general counsel at the Rhode Island School of Design and a national expert on the federal education privacy law, shared Carter's confidence that states would not let their colleges stay between a FERPA rock and a FOIA hard place for long.

He also said it was not at all clear that the Illinois case's conclusions would take hold, as several other federal courts have examined the issue, and the decisions "have gone both ways."

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