Disciplinary records are ‘educational’ and must be secret

From the Spring 2000 issue of The News Media & The Law, page 28.

Student disciplinary records are “education records” and therefore are no longer publicly available in Ohio, a federal judge ruled in March. The decision directly contradicts a 1997 ruling of the Ohio Supreme Court that “nonacademic” records cannot be “education” records. The federal decision came after the U.S. Department of Education ordered Miami University of Ohio and Ohio State University to stop complying with the state high court’s rule that they must make the records available under the state’s open records law.

The Federal Educational Rights and Privacy Act — better known as the Buckley Amendment — denies funds to any school that releases education records without consent. The federal District Court held that the act has a stronger mandate as well: It directs schools not to release the records even if they might be willing to forego federal funding.

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While she was editor of The Miami Student, the campus newspaper at Miami University of Ohio, Jennifer Markiewicz asked the University Disciplinary Board in 1995 for copies of its proceedings so that she could track crime trends on campus. She specifically stated that she did not want names or other identifying details.

The university first denied her request and then a year later relented somewhat, providing records to the newspaper after deleting not only names but ages and genders of students and identifying times or locations of the incidents that led to disciplinary proceedings. This information could lead to the identities of students, the board said.

The university claimed that the Federal Educational Rights and Privacy Act (FERPA), which is also called the Buckley Amendment, prohibited release of “education records” without a student’s permission.

Markiewicz and her successor at the newspaper, Emily Herbert, sued the university for the records in the Ohio Supreme Court, which directly reviews open records cases after agency denials. They argued that disciplinary records are not “education records” protected by FERPA and no exemption under Ohio’s Open Records Act would permit the state-funded university to withhold these records.

In any event, FERPA did not mandate that states withhold the records, it only provided that funds would be withheld, the editors argued.

The university told the state’s high court that the Ohio law exempts records from disclosure when the release is “prohibited by state or federal law,” and that FERPA prevents release. It also argued that release of disciplinary records would violate students’ right to privacy.

In July 1997 the Ohio Supreme Court in Columbus ruled for the editors. It held that disciplinary proceedings before the university board, including criminal matters, were “nonacademic in nature” and not the “educational records” FERPA would protect. By refusing to release information such as the general location of misconduct the school denied students and the general public the right to obtain invaluable information such as when and where alleged offenses took place and how guilty offenders were punished.

The court ordered release of the records but ruled that names, social security numbers and exact dates and time of misconduct could be withheld. (NM&L, Summer 1997)

Miami University wrote the U.S. Department of Education that it might no longer be able to comply with FERPA due to a “potential conflict” with state law. It also informed the federal agency that it had gotten a request for all student disciplinary records over a two-year period from The Chronicle of Higher Education.

In August the Education Department wrote the president of Miami University that it believed that the Ohio Supreme Court had incorrectly ruled in the case and the university responded that it would appeal the state’s decision to the U.S. Supreme Court.

When the U.S. Supreme Court announced in December 1997 that it would not hear the case, the university told the department it would comply with the ruling, releasing student disciplinary records and only redacting students’ social security numbers, and it began releasing the records. The federal government learned the next month that Ohio State University was similarly complying with a request from The Chronicle.

The Department of Education filed suit against Miami University and Ohio State University in January 1998 in federal District Court in Columbus. In a telephone conference, the schools’ attorneys told the federal judge that they would release the disciplinary records including students names as requested by at least one newspaper unless they were enjoined from doing so and the court issued a preliminary injunction. “It is abundantly clear,” the court said, that disciplinary records are education records under FERPA because they “contain information relating to a student” and are “maintained by an educational agency or institution.”

The Chronicle intervened because its interests would not be represented by the universities and argued that the federal government could not force the state to violate its own open records law.

It told the federal court that the Ohio public policy favoring openness was clearly made law in the state’s Open Records Act. The Education Department’s funding mandate in FERPA did not prohibit disclosure of any records, it said. Instead it articulated that the government would cut off funds to states that did not comply. But here, the funding was not even jeopardized as the disciplinary records requested were clearly not education records.

Judge George Smith disagreed. In March 2000 he granted a permanent injunction to keep state-funded schools from releasing disciplinary records. Departing from rulings in other federal courts, he said federal grants such as those to these schools create binding contracts between the federal government and the recipients. He ruled that FERPA does not just condition federal monies on whether or not schools release education records, it imposes a direct obligation on the schools not to disclose them. The Secretary of Education can issue cease and desist orders or take “any other action” provided for by law under FERPA, Smith wrote.

Smith reiterated his finding in the preliminary injunction that disciplinary records fit the definition of “education records” because they pertain to a student.

Additionally he said that because Congress had amended FERPA to require the release of crime statistics, the requesters did not need the information to let the public know about crimes on campus.