Mar 092011
 
 March 9, 2011  Posted by  Court, Featured News, Youth & Schools

Antonio Olivo reports a decision that has me hoping that the University of Illinois appeals:

A federal judge has ruled that the University of Illinios is not barred from releasing the names and other information about hundreds of college applicants who appeared on an internal list of well-connected students, part of a legal dispute between the university and the Chicago Tribune that stems from the newspaper’s 2009 “Clout Goes to College” series.

In a case that has pitted privacy concerns against the public’s right to know, U.S. District Court judge Joan Gottschall ruled that U. of I. is mistaken in citing the federal Family Education Rights and Privacy Act of 1974 in its denial of the Tribune’s efforts to obtain the student’s names, grade-point averages and college admissions test scores.

Read more in the Chicago Tribune.  I’ll have to get and read the whole decision on this one, as I am somewhat stunned at the judge’s statement that FERPA, the federal law that protects the privacy of students’ educational records,

“does not specifically prohibit Illiniois from doing anything, so the University may not use the federal law as authority to withold the records”

While I realize I am not a lawyer or a judge, I think the judge may have gotten this one wrong. By implication, if Section 99.31 specifies the only conditions under which a covered entity can disclose records without consent, then it does prohibit the university from disclosing under conditions that are not specifically mentioned. That section reads:

An educational agency or institution may disclose personally identifiable information from an education record of a student without the consent required by §99.30 if the disclosure meets one or more of the following conditions:

Nowhere in that section is a press inquiry.

That said, a judicial order is one of the exemptions, and if the judge has now ordered the release of the information, the university could and must disclose, but prior to any order, my interpretation of FERPA is that they were prohibited from disclosing identifiable records. I would think that if the judge has ordered the release of the records, the university would notify the students so that they have an opportunity to try to quash or fight the order.

I don’t like seeing universities hide bad behavior behind a FERPA shield, but I do suspect that the judge got this one wrong and I hope the university appeals the decision. That said, I still have to read the decision and my opinion is subject to change if anything else emerges.

Any FERPA experts want to chime in?

Update: I obtained a copy of the judge’s order and have uploaded to this site, here.

Okay, here’s the crux of the judge’s reasoning (bottom of page 6 of the order):

The court must follow the command of the Illinois Supreme Court to construe the exemptions to FOIA narrowly. FERPA does not specifically prohibit Illinois from doing anything, so the University may not use the federal law as authority to withhold the records pursuant to 5 Ill. Comp. Stat. 140/7(1)(a).

The court must follow the command ofthe Illinois Supreme Court to construe the exemptions to FOIA narrowly. FERPA does notspecifically prohibit Illinois from doing anything, so the University may not use the federal lawas authority to withhold the records pursuant to 5 Ill. Comp. Stat. 140/7(1)(a).

  6 Responses to “Federal judge claims FERPA doesn’t specifically prohibit release of records? Say what?!”

  1. I’m not a judge or a lawyer either, but that decision seems to fly in the face of the intent of the law. I’m pretty sure it flies in the face of past decisions, but I’d have to go hunting for cases to prove it.

  2. I read the decision and a couple of the stories on the case. It looks like the judge may have made the right decision, but for the wrong reason. It’s assinine to say that because the school can choose not to accept federal money the law does not require compliance. The fact that federal money cannot be given to an institution that does not comply means that the law requires compliance.

    But the primary records requested – the names of potential students whose admission status was changed after intervention by persons with influence really may fall outside the umbrella of education records. I say may fall outside because the definition is loose and broad, so they may not. But if the judge was going to rule in favor of the Tribune that should have been the lynchpin of the decision, not that FERPA doesn’t require compliance.

    Read decision. Maybe right decision, wrong reason. Comply or lose funds does require state to comply.

    But main request may not fall under #FERPA. list of students whose status changed after VIP influence may be fair game.

  3. Another point on the “requires compliance” issue. I can choose to break the speed limit. Does that mean that speed laws do not require compliance?

  4. Thanks so much for sharing your take on this. We want the media to be able to investigate corruption and influence, etc., but I question whether they really need the names of the students. In fact, had they sought a de-identified list of applicants, I suspect that we wouldn’t be having this conversation. But now you’ve have students whose names and scores on ACT, etc., will be exposed/made public because of potential wrongdoing by adults in their lives and adults at the University. So the students’ will lose some privacy of their education records in service of investigating adults. That doesn’t feel right.

  5. You’re right. Even if they needed the names, only the names and the status change should have been required. If it was frequent enough to warrant investigation then it was frequent enough that test scores didn’t matter, only that a large number of previously unacceptable students were deemed acceptable after VIP intervention.

  6. And as you pointed out on Twitter, even though the judge said that this was a “narrow” ruling, it may be cited in other cases. The protections of both FERPA and Section 504 suddenly seem at more risk to me. FERPA already offers inadequate protections (as far as I’m concerned). This just weakens it further.

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