Editor's note: This article sparked a response from John Locke Foundation director of legal and regulatory studies Daren Bakst, who countered with his article “Protecting Privacy in the Age of Too Much Information.” Steven Roy Goodman got the last word in "Responsible Minds Need to Know."
Traditionally, parents have experienced a combination of pride, empty-nest anxiety, and sheer exhaustion when driving their newly-freshman students to campus. But they often receive a subtle vibe from school officials: “Thank you for bringing your child to our college. Now please go away.”
Due to the federal law known as FERPA (Family Educational Rights and Privacy Act), parents have another reason for concern—will they be able to get enough information about their children while they’re in college?
Mothers, fathers, grandparents, and other tuition-paying relatives are frequently surprised to learn that they don’t have direct access to their students’ college grades. Many are shocked that they can’t have detailed discussions about their sons and daughters with the administrators of student support services on campus. FERPA is the reason.
It was not always so. FERPA dates from 1974. The Act was designed to protect the privacy of student educational records, including disciplinary records and transcripts. It didn’t have much negative impact until 2008. In that year, the student privacy landscape changed greatly, when the U.S. Department of Education revised its regulations applying the law.
The most important 2008 “clarifications” of the law were: (1) that universities must implement safeguards to protect student records, and (2) that a student must consent before an educational institution was allowed to release his or her records.
Because of the ways in which many colleges and universities have interpreted the 2008 FERPA revisions, we now live under an academic version of secrecy that is at loggerheads with American and educational notions of openness and transparency. Many universities now use FERPA for what former Senator James Buckley (who sponsored the original law) feared that it might become: “an excuse for not giving out any information they didn’t want to give.”
According to the Student Press Law Center, FERPA led to unconstitutional restraints on a newspaper. Allegedly to protect student privacy under FERPA, the Wyoming Tribune Eagle was not permitted to publish details of an investigation into the conduct of a community college president. A law designed to protect student privacy was now being invoked to protect the behavior of a school administrator.
Similarly, after an alleged 2009 sexual assault involving two male Wake Forest basketball players and a female band member, school officials explained to the Charlotte Observer that they couldn’t comment because “a federal right to privacy law prevents them from commenting.”
After NBC’s “Today Show” ran a May 2011 segment about sexual assaults involving athletes at both Wake Forest University and Indiana University, here is how the universities used FERPA in their official statements:
Wake Forest: “The University adheres to federal law that prevents us from discussing the details of this case.”
Indiana University: “Indiana University cannot release information about the specifics of this disciplinary proceeding because at least one of the students involved has not signed a FERPA waiver.”
In early 2011, the University of Oregon refused to release information beyond a 127-word statement about possible NCAA violations by its men’s basketball team, citing the need to protect students’ education records. Once again, as Senator Buckley feared, the law was used as an excuse for remaining quiet about a university scandal.
Citing FERPA, schools frequently state that they will not tell anyone about information that could affect a student’s privacy. For example, on its list of questions and answers for parents of students at the University of Minnesota, the University states, “In most cases, the University will not contact parents or provide medical, academic, or disciplinary information without the student’s permission.”
Keeping student information bottled up can have bad consequences. How are parents supposed to know about a student’s sudden serious psychological or emotional difficulty if the university doesn’t contact them—or even respond to their calls? Perhaps the student will call home, but perhaps he won’t.
The idea of young people independently managing their own difficulties without the immediate intervention of hovering parents appeals to many professors and campus administrators, but this notion has dangerous potential. Suicide, along with unintentional injuries and homicide, is one of the leading causes of death for 15- to 24-year-olds. Not only are mental health issues that can lead to suicide prevalent on U.S. campuses, the consequences of psychological counseling—or lack of counseling—are felt in college towns and beyond.
The campus shootings at Virginia Tech and Northern Illinois University demonstrate the seriousness of mental health issues on campus and the need for outside assistance. Unfortunately, FERPA played a role in those tragedies.
“The Report to the President on Issues Raised by the Virginia Tech Tragedy,” by the secretary of health and human Services, the secretary of education, and the U. S. attorney general, specifically states, “Throughout our meetings and in every breakout session, we heard differing interpretations and confusion about legal restrictions on the ability to share information about a person who may be a threat to self or to others.”
Similar issues were raised in the official report to the Governor of Illinois after the February 2008 shootings at Northern Illinois University, including nine references to FERPA.
One of the key findings of the “Report to the President” on the Virginia Tech tragedy was that FERPA affected critical information sharing on campus. According to the report, “Education officials, healthcare providers, law enforcement personnel, and others are not fully informed about when they can share critical information on persons who are likely to be a danger to self or others, and the resulting confusion may chill legitimate information sharing.”
On the positive side, courts are finally addressing the expansion of student privacy definitions, sometimes ruling against claims that FERPA prevents the release of certain information.
Earlier this year, a federal judge ruled that FERPA does not prevent an educational institution from releasing the names and educational records of applicants. In that case, the University of Illinois, embroiled in a high-profile admissions scandal, had argued that it was prohibited from releasing the records on student privacy grounds. The Act was written to cover matriculated students, but the university wanted to expand the Act’s reach to prospective students.
Also this year, Pima County College argued that it couldn’t release Tucson shooter Jared Loughner’s emails because of FERPA. An Arizona superior court judge rejected the college’s position that it was excused from complying with the Arizona Public Records Law because of FERPA.
Caught between sometimes conflicting roles—educator, landlord, substitute parent, police officer, intellectual property incubator, etc.—some universities are working to strike a balance. Loyola University Chicago’s Behavioral Concerns Team encourages faculty members to report disturbing content in student work to other school officials, even if a student’s writing is FERPA-protected (according to Loyola).
The college student as an independent person, responsible for his or her decisions, is an important underlying assumption behind our institutions of higher education. As a society, we should support efforts for students to develop intellectually and emotionally. But FERPA takes this notion too far—and in ways that have little to do with the protection of student privacy. Wildly broad interpretations of FERPA by school officials are ironic, given that in the popular mind universities stand for transparency, inquiry, and the search for truth through open discussion and new ideas.
The time has come for the Department of Education to put together a FERPA task force to examine these issues and for Congress to consider reform of FERPA.