From the Summer 2002 issue of The News Media & The Law, page 35.
As a math professor at the University of Wisconsin for 40 years, J. Marshall Osborn said he noticed that the school admitted a large number of students who could not handle collegiate-level work, only to flunk them later.
Concerned that the school had not done enough to prepare minority and rural students for college-level classes, Osborn joined a Center for Equal Opportunity’s lawsuit against the University of Wisconsin Board of Regents to ask the court for the release of data from all applicant records to see what methods the universities were using to accept students.
“I’m not collecting the records for myself,” Osborn said. “My main concern was that I felt these records should be available and should be public so that anyone can see what was happening and form their own opinions.”
He said, “I don’t think it’s right to be admitting a large number of students who can’t do the work and then flunking them out. I also feel that doing this thing in a clandestine way adds to the feeling that there is something wrong with blacks and minorities.”
In 1998, Osborn and the Center for Equal Opportunity, a conservative think tank based in Washington, D.C., asked the regents to release records from all who applied to the university showing test scores, grade point averages, race, gender and ethnicity but not revealing any personally identifiable information. The records were to be used for a report in which the center would review what factors state universities use in admitting students and to see whether those factors favor certain racial profiles over others.
After the University of Wisconsin cited the Family Educational Rights and Privacy Act to refuse to release some of the records, including portions of the records that were not personally identifiable, Osborn and the center sued.
A trial court judge ruled that the records of the applicants enrolled in the universities were “student records” protected from disclosure by FERPA, but the records of the applicants who did not enroll in the universities were not “student records” and were not protected.
A state appellate court reversed the trial court’s decision in part and affirmed in part, holding that all application records were protected under FERPA because all applicants were in some school at some time before applying. Osborn and the center appealed to the state’s high court.
The Reporters Committee for Freedom of the Press, along with the Student Press Law Center, filed an amicus brief in the case, arguing the importance of openness in government in order to keep universities accountable to the public. They told the court that, regardless of whether a particular group is for affirmative action policies or against them, records are important in order to evaluate a school’s admission policies and they must be accessible to the public.
The Wisconsin Supreme Court found in July that Wisconsin has a presumption of open access to public records and that “all persons are entitled to the greatest possible information regarding the affairs of government and the official acts of those officers and employees who represent them.”
The court found that since Osborn was not requesting students’ names, the names of their parents or other family members, or any other personal identifiers, such as a Social Security numbers or student identification numbers, the university would not have jeopardized its receipt of federal funding under FERPA by releasing the records Osborn requested.
The court found that disclosure of the information that Osborn requested — grade point averages, test scores, race, gender and ethnicity — would not be traceable to identifiable applicants. Without the release of personally identifiable information, the court found there was no danger to a person’s privacy or reputation.
Justice N. Patrick Crooks wrote that, although the right to inspect public records is not absolute, in circumstances where the legislature or the court has determined that the public interest in keeping a public record confidential outweighs the public’s right to have access, a custodian should deny access.
However, he noted, FERPA does not prohibit the disclosure of records. It deprives educational institutions of their federal funding if education records are disclosed without consent. Here, the release of application records without personally identifiable information did not jeopardize the university’s eligibility for funding, as the Board of Regents claimed. It merely prohibited the nonconsensual release of personally identifiable information contained within those records.
The court also rejected the university’s argument that redacting personally identifiable information from the records was “the creation of a new record.” The court said Wisconsin statutes required the records custodian to release portions of the record after redacting information that was not to be disclosed under law.
The court reversed the court of appeals decision and ordered the university to release the application records that Osborn requested.
“I get the impression from the response that the [university] must be hiding something,” Osborn said. “This is maybe the first step in discussing what can and should be done rather than hiding it, but they seem to be doing something, dropping little hints that they’re doing great things for minorities, but they can’t tell anyone what they’re doing. The whole issue needs more light thrown on it.” — MM