From the Summer 2002 issue of The News Media & The Law, page 34.
By Mimi Moon
A federal appeals court panel ruled in late June that any release of personally identifiable information contained in any record maintained by an educational institution is a violation of a federal privacy law protecting education records.
The ruling, affirming a lower federal court, is diametric to a ruling of the Ohio Supreme Court on the same records. The state court said its open records law requires release, but the federal courts said the federal law confers a requirement on colleges and universities to protect the privacy interests of students
The Chronicle of Higher Education, a national weekly newspaper, in late June lost its five-year court battle
to force Ohio universities to release student disciplinary records. A three-judge appellate court panel unanimously held June 27 that “Congress places the privacy interests of students and parents above the federal government’s interest in obtaining necessary data and records.”
The Chronicle sought the records to examine the fairness of campus judicial systems. After an Ohio Supreme Court ruling required Miami University to release student disciplinary records under the Ohio public records act to a student newspaper, The Chronicle made its own request for the records. It requested records from Ohio State University as well.
After the two universities notified the U.S. Department of Education that they would have to comply with the request, the government sued the universities to prevent them from releasing the records. Government attorneys argued that the release violated the Family Educational Rights and Privacy Act, regardless of what the Ohio Supreme Court opinion had held.
The U.S. Court of Appeals in Cincinnati (6th Cir.) affirmed a lower federal court ruling that the universities could not release personally identifiable information in the form of student disciplinary records without violating FERPA.
Judge Karl Forester, who wrote the panel’s opinion, said that the records may be released if personally identifiable information is first redacted.
Student journalists at Miami University of Ohio first requested the information in 1996.
Original records request
When the editors of The Miami Student, the student newspaper of Miami University, wanted to compile a database of student crime trends in 1996, they decided to ask university officials for all crime records from the previous spring.
Aware of privacy concerns, then-editor Jennifer Markiewicz asked the university to provide records of University Disciplinary Board proceedings, but without student names, Social Security numbers or student identification numbers.
At first, the university refused. But in April 1996, after considerable negotiations, the university released heavily edited records, redacting names, Social Security numbers, student identification numbers, gender and age of all accused persons from the records. It also marked out date, time and location of the incidents.
Unhappy with the redactions, the newspaper sued the university in the Ohio Supreme Court. The Ohio Public Records Law permits requesters to file directly to the highest court when an agency denies records.
Attorneys for The Miami Student argued that the records must be disclosed and that their release was not prohibited by FERPA because they were disciplinary, not educational, records.
Furthermore, they argued that FERPA does not actually prohibit the release of records; it merely withholds federal funding from those educational institutions that have a policy or practice of disclosing educational records.
University attorneys argued that the records should not be released because FERPA prohibits the release of educational records and state openness laws have a provision that exempts records from disclosure if prohibited by law. The university also argued that the release of the records would violate students’ privacy.
The Ohio Supreme Court ordered the university to release the records, concluding that disciplinary records were not “education records” as defined in FERPA and compelled the university to comply with the editors’ request.
After the Ohio Supreme Court decision, The Chronicle of Higher Education made its own broad written requests of Miami University and Ohio State for student disciplinary records from 1995 to 1996 for “all university disciplinary records” with no redactions.
University officials from both schools then contacted the Department of Education and explained that they would not be able to comply with FERPA due to the Ohio Supreme Court ruling.
Miami University complied with The Chronicle‘s request in December 1997 by providing disciplinary records for 1995 to 1996 that were mostly unedited. Ohio State University complied with The Chronicle‘s request in January 1998.
The United States then sued the universities seeking to prevent the future release of student disciplinary records. In the complaint, the government argued that the two universities violated FERPA by releasing the student disciplinary records to the public and by adopting a policy of disclosure without first obtaining consent from the students or their parents.
The two universities responded that they had not adopted a policy or practice of disclosing educational records, but that they were merely complying with the demands of the Ohio Supreme Court.
The Chronicle and proponents for open government, including the Student Press Law Center and the Reporters Committee for Freedom of the Press, asked the court to dismiss the case. They argued that the Department of Education did not have standing to bring the case and that the lawsuit exceeded the powers the department held under FERPA’s enforcement provisions. They also argued that FERPA did not prohibit the release of records that are not educational records.
The court determined that the disciplinary records were educational records under FERPA and prohibited the universities from continuing to release them.
The Chronicle appealed the case to the Sixth Circuit. On appeal, the newspaper’s attorneys argued that the United States could not sue to enforce FERPA.
The appellate court rejected those arguments and held that the United States could sue to enforce FERPA’s provisions and use “any other means authorized by law” to enforce FERPA.
The federal appeals court also rejected arguments that the student disciplinary records were not educational records. It held that because interpretation of FERPA is a matter of federal law, the Ohio Supreme Court’s findings that student disciplinary records were educational records were not binding on the federal district court. The appellate court found that the plain language of the statute was clear in defining educational records as any records that relate to the student and are kept by the university.
The appeals court also rejected the argument that there is a First Amendment right of access to disciplinary records detailing criminal activities and punishment. Although the U.S. Supreme Court has held that there is a First Amendment right of access to criminal proceedings and records, the appellate court noted that student disciplinary proceedings are not typical criminal proceedings because they do not provide the same procedural due process protections enjoyed by criminal proceedings.