Frank D. LoMonte has a commentary on Inside Higher Ed, “Why FERPA Is Unconstitutional.” In his commentary, he suggests that the Supreme Court’s ruling in National Federation of Independent Businesses v. Sebelius (the “Obamacare” ruling) could also be applied to FERPA (the Family Educational Rights Privacy Act). You can read his analysis and argument on Inside Higher Ed.
While LoMonte, a lawyer who is executive director of the Student Press Law Center, sees the demise of FERPA as a good thing, I fear we’d be throwing the baby out with the bath water. That FERPA has been misused is indisputable. But it is equally indisputable that state education agencies and local education agencies (school districts) need some clear bright line on what information they may not disclose or share without parental consent (or the student’s consent when the student comes of age). Absent such firm prohibitions backed up by meaningful and severe consequences, nothing really stops schools from unfettered data sharing. Mr. LoMonte writes:
To be clear, striking down FERPA will not throw open genuinely private records that everyone agrees should be kept confidential. Grades, minor disciplinary scrapes and other non-newsworthy information still may be kept secret, because open-records statutes exclude information that clearly invades personal privacy.
“Still may be” is not “will be.” We have already seen the Oklahoma State Education Department decide that their open records laws required them to reveal personally identifiable information about students and their families, including grades. With FERPA off the books, we would be more likely to see such outrageous trampling of the privacy of education records.
With FERPA off the books, what would stop school districts from selling lists of their top 20 seniors’ SAT scores or grades to college recruiters?
With FERPA off the books, schools and courts will be free to make common-sense judgments as to when privacy has been waived – for instance, when a nationally known athlete admits committing a crime – and secrecy serves no rational purpose.
Why should schools make the decision as to whether privacy has been waived? The schools will decide whatever is convenient to them or best serves their purpose – not the privacy interests of the students and parents.
And what will give parents or students the right to sue in court? As LoMonte notes, FERPA does not include a private cause of action. What state law provides for that? And do all states have that kind of law?
No, I fear that with FERPA gone, there will be no strong inducement for schools to even attempt to secure and protect students’ educational records.
This balancing test – weighing, case-by-case, personal privacy against the community’s interest in disclosure – is the right way to protect legitimate confidences while giving the public the information essential to evaluating how its schools are being managed.
Accountability and transparency are important, of course. We agree on that. But eliminating a federal law that protects privacy is not a solution. Would LoMonte suggest we get rid of HIPAA, too, because sometimes that’s used as a basis for denying the public and press information that it deems essential in evaluating situations?
If LoMonte would care to outline or propose a better federal protection law for student privacy, I’m all ears. I think FERPA started out with the best of intentions, but the current situation on data security and privacy of student education records leaves much to be desired. But just declaring FERPA unconstitutional without replacing it with a better law serves the press and community at the expense of student privacy.