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An extensive and ongoing investigation by The Columbus (Ohio) Dispatch has reported that the nation's biggest athletic programs interpret a federal law meant to guard students' privacy in widely different ways. The newspaper's findings have sparked a debate over a statute that has long created obstacles for journalists reporting on public higher education institutions.
The Dispatch’s initial story, published May 31, 2009, reported that responses to public records requests by the 119 colleges and universities in the NCAA’s Football Bowl Subdivision revealed that the schools applied a variety of interpretations of the Family Educational Rights and Privacy Act (FERPA), 20 U.S.C. 1232(g). Also known as the Buckley Amendment, FERPA was passed in 1974 to require educational institutions that receive federal funds to meet privacy requirements regarding the “education records” of students. Generally, FERPA requires a school to obtain written permission from a student or parent before releasing any information from a student’s education record, unless the requesting party is a qualified school official, law enforcement agency, or other party specifically listed in the regulation at 34 C.F.R. 99.1-.65.
The Dispatch reported that it requested records that generally would notpertain to student athletes’ grades or academic performance, but could “shed light on the inner workings of college sports programs, including identifying the people who have access to athletes – some of whom are boosters and agents who, if acting improperly, can bring shame and fines to an entire athletic department.” The newspaper requested airplane flight manifests for football team travel to road games, lists of people designated to receive athletes’ complimentary admission to football games, football players’ summer employment documents, and reports of NCAA rules violations.
Sixty-nine of the 119 schools responded to The Dispatch’s request. Of those, more than 80 percent released unedited information about ticket lists, about half did not censor flight manifests, 20 percent gave full information about football players’ summer jobs, and 10 percent provided unedited information about rules violations. Although most schools handed over the information for free or for a “nominal copying fee,” The Dispatch reported, 14 schools requested fees over $100. The University of Maryland asked for $35,330 for copies of its records. The complete report is available online at http://tinyurl.com/ColumbusDispatchFERPA.
The Dispatch reported that the primary cause for the disparity in disclosure, sometimes even among different schools in the same state, came from the schools’ interpretations of what qualifies as “education records” for the purposes of FERPA.
According to 20 U.S.C. 1232g(a)(4)(A), “education records” are records that “contain information directly related to a student” and “are maintained by an educational agency or institution or by a person acting for such agency or institution.” 20 U.S.C. 1232g(a)(4)(A) and 34 C.F.R. 99.3 state that “education records” do not include administrative or instructional notes or records that are not available to anyone aside from their creator; records maintained by the institution’s law enforcement unit; employee records that “relate exclusively to the individual in that individual’s capacity as an employee” (as opposed to a student’s work-study records, which are considered “education records” under 34 C.F.R. 99.3); medical records; “records created or received by an … institution after an individual is no longer a student in attendance and that are not directly related to the individual’s attendance as a student;” or “grades on peer-graded papers before they are collected and recorded by a teacher.”
In December 2008, the Department of Education modified its interpretation of “education records,” expanding the definition of “personally identifiable information.” The introduction to the rule change states that the amendments were made in order to implement provisions of the USA Patriot Act and the Campus Sex Crimes Prevention Act, in response to two U.S. Supreme Court decisions interpreting FERPA, “and [to] make necessary changes identified as a result of the Department’s experience administering FERPA and the current regulations.” The entire rule, including summaries and examples, is available at http://www.ed.gov/legislation/FedRegister/finrule/2008-4/120908a.pdf.
In the rule change, the Department of Education modified the definition of “personally identifiable information” under 34 C.F.R. 99.3 and 99.31(b) to include not only a student’s name, address, and social security number, but also any “other information that, alone or in combination, is linked or linkable to a specific student that would allow a reasonable person in the school community, who does not have personal knowledge of the relevant circumstances, to identify the student with reasonable certainty,” and “information requested by a person who the educational agency or institution reasonably believes knows the identity of the student to whom the education record relates.”
In one example, the Department explained that officials at a school where a student was caught bringing a gun to school should not release information about the incident “even though a reasonable person in the community where the school is located would not be able to identify the student, because a reasonable person in the high school would be able to identify the student.”
The Society of Professional Journalists sent a letter Jan. 6, 2009 to members of Congress who served on education-related committees, stating that the new regulations would hinder school accountability and diminish public safety. For more on the December 2008 rule change, see “FERPA Expanded; Critics Call New Rules ‘Irrational’” in the Winter 2009 Silha Bulletin.
According to The Dispatch, the University of New Mexico did not censor or redact information on flight manifests or ticket lists, because it did not consider that information “education records.” A University of New Mexico legal consultant told The Dispatch, “FERPA is so clear. We have no discretion.” Meanwhile, records received from Texas Tech related to ticket lists and summer employment were heavily redacted, but flight manifests were not. When The Dispatch asked Texas Tech senior associate general counsel Victor Mellinger about the disparity between the two schools’ approaches, he said, “[The University of New Mexico] made a mistake. If they’ve got student names, they’re protected by FERPA.”
The Salt Lake Tribune, in a June 7 story prompted by the Dispatch investigation, reported that the University of Utah was among 23 schools that redacted student names from every single record it provided to The Dispatch, while Utah State University was among three that did not censor any information at all. The Tribune reported it faced similar discrepancies in approaches to applying FERPA when it investigated student-athlete drug testing in 2007.
Utah State assistant athletic director Jeff Crosbie told The Tribune that, as a state-funded institution, all of Utah State’s information is open to the public unless it involves grades. But a spokeswoman for University of Utah associate general counsel Robert Payne said, given the broad statutory definition of “education records” under FERPA, “We see no exceptions or exclusions under FERPA that would allow the University of Utah to disclose the records in question without redacting student names from the records.”
Jeff Hunt, a Salt Lake City attorney and founder of the Utah Freedom of Information Hotline, told The Tribune the differences in FERPA interpretations often depend on the schools’ lawyers. “The bottom line of if the information gets released or not is up to each general counsel,” Hunt said.
According to a June 16 editorial in The Tribune, the problems stemming from public universities relying on FERPA to keep information secret reach beyond athletics programs. “The [University of Utah] policy clearly applies to all records that involve students. Such a secretive approach to sharing public documents poorly serves a public institution which should be accountable to taxpayers who pay its bills.”
According to The Dispatch on June 17, FERPA has also been cited recently by the University of Alabama for concealing the names of athletes who defrauded the university in a textbook-buying scheme, resulting in NCAA sanctions including a $43,000 fine for the university and the removal of 14 football victories.
The Dispatch reported May 31 that former Sen. James L. Buckley (R-N.Y.), for whom the Buckley Amendment was named, was “stunned” by the investigation’s findings. Buckley told The Dispatch that extending the law to athletes who have gambled or cheated, coaches who have broken recruiting rules, or boosters who offer free meals or no-work jobs to players is
“not what we intended.”
“Things have gone wild,” Buckley said. “These are ridiculous extensions. One likes to think common sense would come into play. Clearly, these days, it isn’t true.” Buckley added, “The law needs to be revamped. Institutions are putting their own meaning into the law.”
The Dispatch investigation has drawn the attention of some lawmakers and open government advocates. The Dispatch reported June 17 that Sen. Sherrod Brown (D-Ohio) sent a letter to the Assistant Education Secretary Carmel Martin, while Ohio Attorney General Richard Cordray sent letters to the Education Department as well as the state’s congressional delegation, calling for reforms in FERPA. Brown’s letter asked the department to “take additional steps to clarify for students, parents, colleges, universities, and the public what is an educational record,” The Dispatch reported.
The New York Times reported June 30 that Paul Gammill, head of the Education Department’s Family Policy Compliance Office, said the Dispatch investigation led his office to take a closer look at how schools apply FERPA. “There seems to be some difference in the way the law is interpreted,” Gammill said, adding that his office advises institutions on compliance, but any changes to the law would have to be made by Congress.
The Times reported that journalists and free press advocates have long been frustrated by universities’ use of FERPA to deny information requests. “Over the years, FERPA has morphed into kind of a catch-all excuse for schools and colleges to deny just about any open-records request that they’re motivated to refuse,” said Frank LoMonte, Executive Director of the Student Press Law Center.
In Illinois, the Chicago Tribune filed a lawsuit, Chicago Tribune Co. v. University of Illinois Board of Trustees, No. 2009-MR-000431 (Ill. Cir. Ct. Sangamon Cty. 2009), on June 16 against the University of Illinois, seeking the release of grade-point averages and standardized-test scores of hundreds of applicants who were placed on an internal list of well-connected students.
The Chicago Tribune has reported in an ongoing series called “Clout Goes to College” that unqualified applicants have gained admission to the university through the backing of state legislators and university trustees over the last five years. The Tribune reported June 17 that the initial reporting was based on about 1,800 pages of documents released by the university following a public records request. However, university officials have declined to release the high school grade-point averages or ACT test scores of those “clout list” applicants without written consent from parents or the applicants themselves, citing FERPA. The Tribune has said it only wants information about the applicants’ academic credentials, not their names or identifying information.
Meanwhile, in Associated Press v. Florida State University Board of Trustees, No. 2009-CA-2298 (Fla. Cir. Ct. 2009) Florida Circuit Judge John Cooper ruled that documents related to a Florida State University appeal of NCAA sanctions that were issued for academic cheating in 10 different sports departments at the university are public information. The Dispatch reported June 22 that the NCAA barred Florida State from releasing its response to the university’s appeal because of a confidentiality agreement the NCAA initiated with member schools about five years ago. The NCAA places information about rules violations on a secure Web site that is only available to NCAA members.
Cooper granted the joint petition of 24 media organizations from the bench on August 20, and ordered that the records must be made public after student names are blocked out. Cooper agreed with the organizations that the documents were covered by Florida’s public records law: Fla. Const. Art. I 24 and Fla. Stat. 119.01. “The NCAA’s position is clearly contrary to the broad interpretation given to the definition of public records in Florida courts and legislative language,” Cooper said when issuing his ruling, according to an August 21 story in the South Florida Sun Sentinel.
According to an August 21 Associated Press (AP) story, David Berst, NCAA vice president for Division I, said the ruling would discourage the reporting of NCAA violations, speculating that few witnesses other than school officials and employees would be willing to tell what they know about cheating without the promise of confidentiality. “We could see copycat efforts in other states,” Berst said. “I believe that would rip the heart out of the NCAA.” The AP reported August 22 that the NCAA plans to appeal Cooper’s order and ask Florida’s 1st District Court of Appeals to block the release of the documents until it can hear the case.
– Patrick File
Silha Fellow and Bulletin Editor