STUDENT RECORDS — PRIVATE OR NOT?

Theresa M. Zawacki

Student records are private records – but students cannot use federal law to sue a university that releases their private records to the public. Federal law requires colleges  and universities to keep much information about students confidential unless the student gives explicit permission to release it. If the institution fails to meet this requirement, it  can lose its federal funding. Recently, the federal courts have addressed the privacy provisions of the Family Education Rights and Privacy Act (FERPA) with good and bad results for members of Greek organizations and students in general.

The U.S. Supreme Court recently ruled that FERPA does not give an individual the right to pursue a suit against a university when that university released the student’s confidential records. A student at Gonzaga University planned to become a public elementary school teacher. The State of Washington required all new teachers to file an affidavit of good moral character from their graduating college. The student’s “teacher certification specialist” overheard that the student had engaged in acts of sexual misconduct against a female student. The teacher certification specialist launched an investigation without the student’s knowledge and contacted the state agency responsible for teacher certification to discuss the situation, including specific details about the student’s record.  The  student  did not receive his affidavit. The student brought suit to enforce his right to privacy under FERPA.

The Supreme Court stated in its 7-2 decision that there was no individual right to enforce the provisions of FERPA to deal with privacy violations. The statute deals with institutional policy and practice and not with individual instances of disclosure. It speaks only to the Secretary of Education and not to the individual student in terms of enforcement The Court noted that FERPA creates a review board for violations and establishes the Family Policy Compliance Office (FPCO) to ensure uniform enforcement of the Act.  A  student  or parent may file a complaint against a particular educational institution. Because FERPA deals with the institution and not the individual, because the Act does not speak to the individual, and because of Congress’ centralized review process, the Court determined that there was no right to individually enforce FERPA for student privacy violations.

While students may still be able to sue for invasion of privacy and possibly under a contract theory, the Court’s decision leaves students whose privacy has been violated without a remedy for the violation of FERPA. The most that students whose privacy has been invaded through the release of confidential information can hope for is that their complaint filed with the FPCO will lead to an investigation  of  their educational institution, and that the investigation will have negative repercussions. However, if a student does not know that an investigation of his or her personal educational records is underway, as was the case in Gonzaga University, damage could be done before the student becomes aware of  the situation.

[CAMPUS RAPE UNREPORTED

A recently released study conducted by the Educational Development Center and the University of Cincinnati reports that a majority of American colleges are failing to comply with federal law requiring the reporting of campus crimes, particularly those relating to rapes and sexual assaults. The study looked at a total of 2,438 colleges and universities and found that the majority failed to make crime data available to prospective students.

The Chronicle of Higher Education reported on the study in the November 1, 2002 issue and said: “Colleges may be in violation of the Clery Act because of deliberate indifference or genuine ignorance, said S. Daniel Carter, Vice President of Security on Campus, a non-profit campus-safety organization, in response to the results of the survey. A lot of people are in the habit of doing things a certain way and are not willing to change that.”

The study is available at http://www.edc.org/hhd.]

In another recent case, the Chronicle of Higher Education made written requests seeking the student disciplinary records of Miami University and Ohio State University for years 1995-1996. Miami University contacted the U.S. Department of Education because it believed that by releasing the records, it was in violation of FERPA. The Department agreed. The United States subsequently brought suit to prohibit the release of the records.

The United States Court of Appeals for the Sixth Circuit affirmed the District Court’s finding that student disciplinary records are protected educational records under FERPA. Congress created two specific exceptions to the general policy of confidentiality of student records. According to the Court, the results of hearings could be released to victims of crimes and limited information regarding certain crimes could be released to the general public when the university determines that the student violated school policy by committing the offense. The Court stated that in this case, irreparable injury would be caused to the Department of Education and to the public as once confidential records were released, the reputations of the students involved would be harmed and the general privacy interest Congress sought to protect with FERPA would be greatly  diminished. In order to prevent this irreparable injury, the Sixth Circuit granted an injunction to prevent the release of the requested disciplinary records. The Court noted that because student disciplinary proceedings are not criminal proceedings, even though they may deal with matters that could be considered criminal, they are not matters of public  record. Therefore, the decision does not cause a First Amendment problem for the press because the press does not have a right to access information not available to the general public.

The Miami University decision is an important safeguard for members of the Greek system and students in general who have been subject to university-imposed discipline, as the records relating to their discipline may not ordinarily be disclosed to members of the general public.  If  a university cannot be required to release student disciplinary records, can it require a fraternity chapter to turn over its disciplinary records? That question remains unanswered.