Cases Under FERPA
Electronic Privacy Information Center (EPIC) v. US Department of Education, Civil Action No. 12-0327 Sept. 9, 2013, U.S. Dis.Ct, D.C.
Plaintiffs challenged the Dec. 2, 2011 Amendments to FERPA. (76 Fed. Reg. 75604) which added the category of student identification numbesr to directory information, as long as the numbers could not be used to access any personally identifiable student information. Plaintiffs also challenged the definitions of "authorized representatives" and "educational programs". They argued that by designating non-governmental actors as “authorized representatives” of state educational institutions, the Department performed an“unauthorized, unlawful subdelegation of its own authority, and that by expanding the definition of educational programs, the DOE exposed troves of sensitive non academic data. The court found EPIC and the four individual plaintiffs (board members of EPIC) not to have standing to bring the challenge.
State ex rel. ESPN v. Ohio State University, Slip Opinion No. 2012-2690
Court held OSU was correct to deny a public records request for FERPA protected documents and other documents protected by attorney client privilege. The court did not buy ESPN's argument that FERPA did not prohibit the disclosure of the requested records, but merely "penalizes" those schools that have a policy or practice of disclosing.
United States v. Miami University, No. 00-3518, 2002 U.S. App. LEXIS 12830, (6th Circuit) June 27, 2002, Decided
The genesis of this case goes back to the spring of 1995, when the editor in chief of a student newspaper at Miami University sought disciplinary records of students attending the university in order to track crimes on campus. After an initial refusal, the newspaper made a request for release pursuant to the Ohio Public Records Act. In response to the open records request, Miami University released the records after redacting any personally identifiable information from the records. The student newspaper editors sought more information than was released, and filed a writ of mandamus, which was granted by the Ohio Supreme Court. The Ohio Supreme Court concluded that student disciplinary records were not education records covered by FERPA. The United States Supreme Court denied a petition for certiorari in the case.
In turn, The Chronicle of Higher Education made written requests for disciplinary records for calendar years 1995 and 1996 from both Miami University and Ohio State, requesting that the names be intact and the redaction minimal. This request was based in part on the Ohio Supreme Court theory that disciplinary records were not education records. In response to the request, both Ohio State and Miami University released a batch of disciplinary records containing personally identifiable information. Both schools informed the Department of Education of the release of the records, and intended future release of records, and their quandary in trying to comply with both the Ohio Supreme Court ruling and FERPA.
In order to prevent further release of student record information, the Department of Education filed a complaint against the Universities, along with a request for preliminary and permanent injunctive relief prohibiting the Universities from releasing student disciplinary records. The Chronicle filed a motion to intervene and motions to dismiss based on standing, as well a motion for a reasonable period of time for discovery. The DOE responded by filing its own motion for summary judgment.
The district court determined that the student disciplinary records were in fact education records under FERPA, and the court granted the Department of Education motion for summary judgment and permanently enjoined the Universities from releasing disciplinary records in violation of FERPA. The Chronicle appealed.
The 6th Circuit Court of Appeals held that the plain text of the statute (20 U.S.C. § 1232g(a)(4)(A)) broadly construes the phrase education record to include those records containing information directly relating to a student which are maintained by an educational agency or institution or person acting for the agency or institution. In addition, the four exceptions to the statute allowing disclosure of certain disciplinary records in narrowly defined situations evinces a Congressional intent to protect disciplinary records in general and treat them as covered. The 6th Circuit Court of Appeals thus affirmed the District Court's grant of summary judgment to the Department of Education, and upheld the granting of a permanent injunction and the denial of the discovery requests.
In strong language in the section of the opinion upholding the grant of injunctive relief the Court noted as follows:
Moreover, millions of people in our society have been or will become students at an educational agency or institution, and those people are the object of FERPA's privacy guarantees. Accordingly, systematic violations of the FERPA provision result in appreciable consequences to the public and no doubt are a matter of public interest….In light of the noble and broad objectives of the FERPA and the irreparable harm to the public interest, injunctive relief was appropriate in this case.
Gonzaga University v. Doe, No. 01-679, 122 S.Ct. 2268, June 20, 2002. Chief Justice Rehnquist authored the Court's opinion holding that FERPA's nondisclosure provisions created no personal rights to enforce under § 1983, overuling the case of Doe v. Gonzaga University, 24 P.3d 390; 2001 Wash. LEXIS 381. This case concerned an education student who sued the University for disclosing information to state licensing officials regarding his fitness to practice as a teacher. The record of the case seems to indicate no education record as defined under FERPA was actually involved. As stated in the Supreme Court opinion, the facts were as follows:
In October 1993, Roberta League, Gonzaga's "teacher certification specialist," overheard one student tell another that respondent engaged in acts of sexual misconduct against Jane Doe, a female undergraduate. League launched an investigation and contacted the state agency responsible for teacher certification, identifying respondent by name and discussing the allegations against him. Respondent did not learn of the investigation, or that information about him had been disclosed, until March 1994, when he was told by League and others that he would not receive the affidavit required for certification as a Washington schoolteacher.
The argument that no education record as defined under FERPA existed was raised at the trial level, but not preserved on appeal. Doe was awarded damages in the amount of $1,155,000, $300,000 of which was designated as punitive damages for the FERPA violation, and $150,000 for the violation of FERPA rights.
The only issue on appeal to the Supreme Court was whether FERPA grants a private right of action that can be enforced through 42 U.S.C. § 1983. The Court held as follows:
In sum, if Congress wishes to create new rights enforceable under §1983, it must do so in clear and unambiguous terms-no less and no more than what is required for Congress to create new rights enforceable under an implied private right of action. FERPA's nondisclosure provisions contain no rights-creating language, they have an aggregate, not individual, focus, and they serve primarily to direct the Secretary of Education's distribution of public funds to educational institutions. They therefore create no rights enforceable under §1983.
While lower courts have always held that no private right of action exists under FERPA, most lower courts had permitted damages for an under color of state law violation brought under 42 U.S.C. § 1983. The holding thus has most impact on state educational institutions, but could be beneficial to private institutions in those rare circumstances where a theory of "acting under color of state law" could be articulated. The Supreme Court chose not to address this issue in the case.
Justice Breyer (joined by Souter) filed a concurring opinion, stating that although he concurred with the outcome, he would not predetermine the outcome by the use of a presumption that a right is conferred only if set forth unambiguously in the text and structure of the stature. The concurring opinion dealt most directly with the substance of FERPA, stating that much of the statute's key language is broad and nonspecific. In continuing the "common sense" theme brought up in the Owasso case, Breyer noted the following:
The statute, for example, defines its key term, "education records," as (with certain enumerated exceptions) "those records, files, documents, and other materials which (i) contain information directly related to a student; and (ii) are maintained by an educational … institution." 20 U.S.C. § 1232g(a)(4)(A). This kind of language leaves schools uncertain as to just when they can, or cannot, reveal various kinds of information. It has led, or could lead, to legal claims that would limit, or forbid, such practices as peer grading, see Owasso Independent School Dist. No. I-011 v. Falvo, 534 U.S. 426 (2002), teacher evaluations, see Moore v. Hyche, 761 F. Supp. 112 (ND Ala. 1991), school "honor society" recommendations, see Price v. Young, 580 F. Supp. 1 (ED Ark. 1983), or even roll call responses and "bad conduct" marks written down in class, see Tr. of Oral Arg. in Falvo, supra, O. T. 2001, No. 00-1073, pp. 37-38. And it is open to interpretations that invariably favor confidentiality almost irrespective of conflicting educational needs or the importance, or common sense, of limited disclosures in certain circumstances, say, where individuals are being considered for work with young children or other positions of trust.
The amicus brief of the Solicitor General supporting Gonzaga University can be found online through the U.S. Department of Justice website, and is of interest due to the statement in footnote 6 that the Department of Education position (argued for purposes of the brief but possibly in the future as well) is that FERPA is only violated by cases where a policy or practice of violating the law can be found. Query whether failure to train staff with access to education records could be a policy or practice violation. In response to such a question at the June 2002 NACUA conference, the General Counsel for the U.S. Department of Education stated that such a failure may very well be a violation of the law.
Owasso Independent School District v. Falvo, No. 00-1073, 534 U.S. 426, 122 S.Ct. 934, February 19, 2002. In this case the Court confronted the practice of "peer grading" whereby students grade one another's papers under the direction of the teacher. This practice was challenged by Kristja Falvo, who argued that the practice of calling out the grades to the teacher embarrassed her elementary school children and was a violation of FERPA. The Court ruled 9-0 that this practice did not violate FERPA, as there was no "education record" under the FERPA definition. In order to qualify as an "education record" the grade would have to be maintained by the institution. Per the Court, "The teacher does not maintain the grade while students correct their peers assignments or call out their own marks. Nor do the student graders maintain the grades within the meaning of § 1232g(a)(4)(A). "
In reaching this opinion, the Court declined to rule on whether or not a teacher's grade book was an education record, or whether or not FERPA provides private parties an enforceable cause of action under § 1983. The latter issue will be decided in the case of Gonzaga v. Doe, 534 U.S. ___ 2002 (see below) to be heard by the Supreme Court in April of this year.
A possible point of confusion for educational administrators was the following suggestion by Justice Kennedy: "By describing a "school official" and "his assistants" as the personnel responsible for the custody of the records, FERPA implies that education records are institutional records kept by a single central custodian, such as a registrar, not individual assignments handled by many student graders in their separate classrooms."
Only Justice Scalia recognized the problem of this "single central custodian" theory. In a concurring opinion, he called the theory "incurably confusing", and logically out of sync with the original FERPA statute. That law provides an exception from the law for "sole possession records", notes by a faculty member or school employee kept only to themselves for their own use., This exception would be rendered superfluous by the "central custodian" theory.
The "single custodian" theory put forth by Kennedy fails to recognize the myriad of places that student records are actually found at an educational institution, especially a large institution such as a suburban high school or a college or university. See So, what things are education records? in the CUA Office of General Counsel 1997 publication on FERPA. The Justices did recognize that many records are now kept on computer, as the opinion mentions records kept on a "permanent secure database".
In recognition of the potential university liability for relying on a perhaps too narrow definition of "education records" by the Court (the Court does not recognize the practical impossibility of keeping education records all under a "single central custodian"), CUA will continue to advise faculty and staff that education records are protected by FERPA, regardless of where they are physically kept, whether on Cardinal Student, in the Athletic Office, The Office of the Dean of Students, or the Registrars Office.
The transcript of the oral argument of this case can now be found online.
On July 2, 2002, the Wisconsin Supreme Court ordered The University of Wisconsin Board of Regents to provide applicant records, after redaction of personally identifiable information, to the Center for Equal Opportunity. The Center had made an open records request to the University seeking applicant records for several campuses, as well as the University of Wisconsin Law and Medical Schools. In an August 2001 decision, J. Marshall Osborn and Center for Equal Opportunity v. The Board of Regents of the University of Wisconsin, a Wisconsin Court of Appeals held the records requested were protected by FERPA, and that the University of Wisconsin could claim FERPA protection (including for those records of students who had never matriculated at the University) in denying the open records request with respect to all of the different records requested.
The records sought were records created by a high school, a post-secondary school, or an educational testing agency, and included test scores, class rank, grade point average, race, gender, ethnicity, and socio economic background. The University argued first that the records were protected by FERPA, and second that the public interest in disclosure is outweighed by the public interest in non-disclosure. In addition, the University claimed that redacting the personally identifiable information contained in the thousands of applications would require creation of a new record, something the Wisconsin Open Records Law does not require.
The Supreme Court held that FERPA does not prohibit disclosure of all information contained in education records, only personally identifiable information. The Court concluded that only if the open records request seeks information that would make a student's identity traceable may a custodian rely on FERPA to deny the request on the basis that it seeks personally identifiable information. The Court also found no overriding public interest in keeping the records confidential. Finally, the Court interpreted Wisconsin Open Records law to require the custodian to provide the information subject to disclosure and delete or redact any personally identifiable information. The Court stated the University is entitled to charge a fee for the actual, necessary and direct costs of complying with the requests. The Wisconsin Attorney General has said in the past that an agency could charge for staff time for copying, but that the agency has to bear the cost of redacting. 72 OAG 99 (1983). This opinion appears to allow a charge for staff time for redacting as well.
The Supreme Court did not address the question of whether the education records of persons who did not matriculate are protected by FERPA. Note that this decision is at odds with guidance from The Family Policy Compliance Office. The Family Policy Compliance Office has generally taken the position that records sent by the student to the university are not protected as education records unless/until the student matriculates. In contrast, records about a student sent directly from the high school to the university would be covered as education records regardless of whether or not the student matriculates. Finally, educational testing agency records sent about a student would not be protected unless the student matriculates, as the student was not in attendance at the agency, and thus the FERPA confidentiality provision did not attach at the time of taking the test, unlike the case with records created by a high school. *
*See Jan. 30, 2001 FPCO opinion letter to Bill Reedy, Vermont Department of Education for definition of educational agency or institution.
In February 2001, a Superior Court in Maine held that emails generated outside normal academic exercises by members of the Bates Jewish Cultural Community (JCC) student organization to JCC's faculty advisor are protected as private and confidential records under the Family and Educational and Privacy Rights Act (FERPA) (20 U.S.C. § 1232).
This case stems from the relationship between JCC and the spiritual leader of Defendant Congregation Beth Abraham, which serves the needs of persons of the Jewish faith in the area including Bates College. Concerned by student reports that the spiritual leader was interfering and acting inappropriately with Bates students, JCC's faculty advisor contacted the spiritual leader and reported the alleged conduct to officers of Congregation Beth Abraham. In doing so, JCC's faculty advisor shared student emails describing the spiritual leader's conduct with the congregation's officers, even though the students who had written the emails specifically requested that the faculty advisor refrain from disclosing the contents of their emails. Bates sought injunctive relief to prevent disclosure by the congregation officers and to secure the return of the emails.
The court based its decision on 20 U.S.C. 1232g(a)(4)(A). It found that, under FERPA, "[a]lthough the messages were directed at the conduct of a person outside the college community, they named several students and their involvement with a spiritual leader  whose duty it was to interact with them and assist in the spiritual enrichment of their lives. The records directly related to the named students and sought the advice and assistance of a person acting for the college [JCC's faculty advisor]."
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