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State-ordered student records release violates FERPA

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    NMU         SIXTH CIRCUIT         Freedom of Information         Jul 2, 2002    

State-ordered student records release violates FERPA

  • Federal judges held that a federal privacy law prohibits Miami University of Ohio and Ohio State University from adopting policy of releasing student disciplinary records to the public even though the state’s Supreme Court had ruled Ohio law requires disclosure.

A federal appellate court held June 27 that a periodical has no First Amendment right or state open records right to access student disciplinary records of universities and that the Family Educational Rights and Privacy Act specifically prohibits schools from releasing them.

Miami University and Ohio State could not release student disciplinary records to The Chronicle of Higher Education, an education trade newspaper, because that would violate FERPA, the U.S. Court of Appeals in Cincinnati (6th Cir.) ruled.

The case arose after the Ohio Supreme Court in 1997 required Miami University to release all student disciplinary records, except any information that is personally identifiable as defined in FERPA, to the student editors of Miami University’s student newspaper. The court held that the state’s Public Records Act provides for access to all public records upon request unless the requested records fall within one of the specific exceptions listed in that act, none of which covered the “education records” defined by FERPA. The Ohio court further held that disciplinary records were not “education records” as defined by FERPA.

After the Ohio Supreme Court decision, the Chronicle asked officials from Miami and Ohio State universities for disciplinary records from 1995 to 1996 with as little redaction as the Ohio Supreme Court decision would allow.

Both universities contacted officials at the Department of Education, explained that they would not comply with FERPA, and said that they would release the student disciplinary records to all who requested that information.

Education officials then filed a complaint against the universities in federal district court in Columbus and asked that court to bar release of the records.

The Chronicle in February 1998 asked the federal district court to dismiss the case, arguing that the lawsuit exceeded the powers that the department had under FERPA’s enforcement provisions which speak to denying funds to schools which disclose education records. But the district court in March 2000 held that student disciplinary records were education records protected under FERPA and permanently prohibited the universities from releasing them.

The Chronicle appealed the case to the Sixth Circuit.

The appellate court held that provisions of FERPA gave the department the power to sue over FERPA violations and held that it could resort to “any other means authorized by law” to enforce FERPA.

The federal appeals panel also found that, despite the fact that the Ohio Supreme Court’s rule that student disciplinary records are not educational records, the federal district court was not bound by the decision because the interpretation of FERPA is a matter of federal law. The appeals court found that, under the plain language of the statute, student disciplinary records are education records because they directly relate to a student and are kept by that student’s 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.

The court denied the Chronicle even a qualified First Amendment right of access to the student disciplinary records. The court said access would not improve traditionally closed student disciplinary proceedings nor would denial of access to records prevent the Chronicle from obtaining information about crime on university campuses.

This decision comes a little more than a week after the U.S. Supreme Court decision in Gonzaga v. Doe, where the Supreme Court held there is no individual right to sue to enforce the provisions of FERPA.

(U.S. v. Miami University; Media counsel: Marc D. Mezibov, Sirkin, Pinales, Mezibov & Schwartz, Cincinnati) MM

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