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Affirmative action study foiled by ruling on Buckley Amendment

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    NMU         WISCONSIN         Freedom of Information         Sep 21, 2001    

Affirmative action study foiled by ruling on Buckley Amendment

  • A state appeals court says a researcher cannot learn if race and ethnicity play any role in the admissions of students to University of Wisconsin campuses from the university’s applicant records, even if personal information could be deleted.

The University of Wisconsin does not have to disclose information about its applicants, even with names and personally identifiable information blacked out, to a professor studying whether affirmative action affects the acceptance or rejection of qualified students, a divided state appeals court in Madison ruled Aug. 30.

The court said “public policy” and the federal Family Educational Rights and Privacy Act, otherwise known as the Buckley Amendment, protect “education records” from release under the state’s open records law. The “nature of the records” remains the same, even if the information tells nothing about individual students, the majority said.

The court said the university did not have to release the information with exempt portions blacked out even though the Wisconsin open records law requires records custodians to excise exempt information and release the rest. The appellate court ruled, as had a lower court, that if records are made confidential by law, they do not have to be reviewed for exemptions.

Retired math professor J. Marshall Osborn, past president of the Wisconsin Association of Scholars, sought records on applicants to the university’s 11 campuses and its law and medical schools to determine if and how the school’s affirmative action policy affects admissions. He stated that he did not want names or other individually identifying information.

His study is like others being conducted by the Center for Equal Opportunity, a Washington, D.C.- based conservative think tank headed by Linda Chavez, former staff director of the Civil Rights Commission during the Reagan administration. The center opposes affirmative action programs if they keep other qualified applicants from being accepted into universities.

Roger Clegg, general counsel for the center, told The Capital Times in Madison, that, although there is obviously controversy over whether colleges should make racial and ethnic preferences in admissions, “whatever the University of Wisconsin is doing, it should be a matter of public record.”

When the Board of Regents denied Osborn’s request he sued in a circuit court in Madison. Judge Stuart Schwartz ruled in July 2000 that the Buckley Amendment bars disclosure of student records but not records of applicants who were never admitted. The appeals panel reversed that ruling, saying the federal law covers all applicants because they had been students in some school at some time.

The appellate court’s Chief Judge Charles Dykman dissented. He said whether the Board of Regents considers race, ethnicity, heritage and gender in admitting students is an important issue and one which should not be kept secret from the people of Wisconsin. In interpreting a statute which calls for maximum openness, he said, the court should have balanced competing interests for and against disclosure and determined that public policy favors disclosure of the non-identifying information sought by Osborn.

Dykman also said that under U.S. Department of Education regulations, FERPA only requires institutions to protect the records of individuals who are or have been enrolled there. The university would not be required by FERPA to protect records of persons who had only attended other institutions, he wrote.

(Osborn v. Board of Regents of the University of Wisconsin; Plaintiff’s attorney: Daniel Kelly, Milwaukee, Wis.) RD

© 2001 The Reporters Committee for Freedom of the Press

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