Christian G. Ohanian of Dickinson Wright PLLC writes about the need to amend FERPA:
…. Recently, many have criticized the manipulation of FERPA’s provisions to thwart the public’s access to information in order to protect these educational institutions. Yet, where some provisions of FERPA may be used to improperly justify failing to disclose information relating to students, other terms lack the clarity to protect student information in circumstances where it should not be released. The exceptions which permit the disclosure of information, under FERPA, including, specifically, the subpoena disclosure provision fail to provide sufficient guidance to courts, abandoning them to make little more than an educated guess as to when they should order the release of protected information and when to secure that information from disclosure.
The failure to articulate clear conditions that govern when a court should release protected education records has created a muddled interpretive framework where some courts elect to balance a student’s privacy interests against the requesting party’s need to obtain the records, with other courts rejecting the claim that there are privacy interests conferred by the statute.
As is described throughout this article, Congress should amend the statute to provide a more robust interpretive framework for FERPA, clearly articulating a balancing test that governs the disclosure of education records in response to a lawfully issued subpoena. Without such amendment, FERPA will languish in the purgatory of poorly written laws, continuing to be unharmoniously applied be federal and state courts, inevitably leading not only to a byzantine progeny of interpretive case law but the violation of the student privacy interests that it was designed to protect.
In Part II of this article, I provide a brief background of FERPA and its purpose. In Part III, I discuss the subpoena disclosure provision of FERPA. In Part IV, I discuss and analyze the many courts, state and federal, that have considered the privacy interests implicated by FERPA in the face of requests for education records. In Part V, I discuss my recommendation that Congress amend FERPA to provide a clear articulation of the conditions under which a court should order disclosure of education records in response to a lawfully issued subpoena.
Read more on The National Law Review.