The Family Educational Rights and Privacy Act (FERPA)

The Family Educational Rights and Privacy Act of 1974 is the federal law that protects the privacy of student education records and requires schools to obtain a student’s consent, or, for minor students, the consent of their guardian, prior to disclosing academic records.

The law was aimed at protecting students’ grades and disciplinary records from public release, but according to the Society of Professional Journalists, it “has been twisted beyond recognition, keeping school lunch menus, graduation honors and athletic travel records secret.”

In practice, the act is frequently abused to deny newsworthy open-records requests for information in which there is no legitimate privacy interest, said Frank LoMonte, executive director of the Student Press Law Center. “Because of the over-the-top way that schools and colleges interpret FERPA, journalists have been denied access even to anonymous statistical information that’s necessary to perform their oversight function,” he said.

LoMonte cites other extreme examples, including practices at the University of Wisconsin-Milwaukee and Emporia State University in Kansas. Wisconsin “took FERPA literalism to new heights” when it withheld audiotapes and minutes of open, public committee meetings during which students spoke and voted, saying that the students’ voices were private information and Emporia claimed that campus parking tickets are were private under the act, LoMonte said.

When Congress enacted FERPA during the 1970s, it was designed to protect student records from being released during a time when a substantial amount of social-science research was taking place in elementary and high schools. “The addition of colleges to FERPA was very much an afterthought and some people in fact think it was a mistake,” LoMonte said.

Still, at the time, the act was understood to apply only to educational records and not to every document that refers to a student. When courts have interpreted the law they have used this common-sense approach, but the Department of Education has been “openly defiant,” even enacting a rule effective in January 2009 that appears to directly contradict the courts’ interpretation that documents are no longer FERPA documents once student identities are removed, LoMonte said.

The new Department of Education regulations prevent the release of even anonymous information when those records are requested by someone the institution “reasonably believes” knows the identity of a student involved in the record. This new rule proves especially problematic for journalists because it hinders their ability to make a generalized records request about a widely publicized campus incident when the names of involved students have already been made public.

Because the law is vague and unclear, reporters say, even simple open-records requests are handled differently at different schools. A six-month investigation by the Columbus Dispatch in 2009 into how college athletic departments respond to public records requests found that branches of the same state college system had conflicting approaches to dealing with records requests.

The results of the Columbus Dispatch investigation “stunned” former U.S. Senator James Buckley, who crafted the legislation in the 1970s to keep report cards and transcripts private. Buckley told the newspaper he never intended for the law to apply to athletic records. “The law needs to be revamped. Institutions are putting their own meaning into the law,” Buckley said.

Meaningful reform would hinge on getting rid of the “perception, fueled by a poorly drafted statute, that a school that slips up and mistakenly honors an open-records request will lose all of its federal money and be shut down,” LoMonte said. “In the 36-year history of the statute, not one institution has ever been penalized one dime, and yet that perception persists.”

LoMonte said the statutory definition of what is an “education record” could also be tightened so that it is clear that a student’s parking tickets, job application or any other document that is generated in a non-academic capacity is not a FERPA record. “If the student is just doing something that any member of the general public could do, like getting a traffic ticket, then they’re not acting in their ‘student’ capacity and there shouldn’t be two sets of disclosure rules just because one driver was lucky enough to register for a racquetball class,” he said.