FERPA Fundamentalism


How a federal law designed to protect student privacy is being misinterpreted to injure press freedom





For more than 25 years, the Family Educational Rights and Privacy Act (FERPA), or "Buckley Amendment," has protected the privacy of student education records.[1] Recently, however, some school districts have given the Act a curious interpretation. Increasingly, secondary school administrators have begun to claim that FERPA prohibits student media, especially online student media, from publishing the name or photo of a student without written consent from the student's parent. After a close examination of the Act's language and its interpretation, however, it is clear that school administrators stand on shaky legal ground in extending FERPA's reach to the student media.

Background

The Family Educational Rights and Privacy Act was enacted in 1974 as an amendment to the General Education Provision Act.[2] The Act applies to any public or private school, and any state or local education agency, that receives federal education funds.[3] Schools that violate FERPA risk losing those funds.[4] The Act has two parts. First, FERPA gives students (and the parents of minors) the right to inspect and confirm the accuracy of their own education records.[5] Second, FERPA prohibits disclosure of most education records and "personally identifiable information in education records" without the student's (or the student's parent's) written consent.[6]

FERPA also contains some exceptions. First, disclosure of student education records to most school officials and to authorized law enforcement personnel is permitted.[7] The Act also allows disclosure of "directory information." Directory information means information contained in a student's education records "that would not generally be considered harmful or an invasion of privacy if disclosed."[8] Such information includes, but is not limited to, students' names, addresses, telephone numbers, photos, participation in officially recognized activities and sports, the weights and heights of members of athletic teams, dates of attendance, and degrees and awards received.[9] School districts that have a policy of disclosing this information must give public notice of what they consider "directory information" and inform parents that they may refuse to allow its disclosure.[10]

FERPA is meant to apply to information "collected and maintained by most public elementary, secondary, and postsecondary education institutions and by some private institutions."[11] While there have been some problems along the way, the Act has generally served its role as one of the nation's strongest privacy protection laws.[12] However, for reasons unknown, school administrators around the country have recently started to give FERPA an entirely unique interpretation-one that threatens the vitality and relevance of the student press.

FERPA and the Student Press

In October 2000, the McKinney Independent School District in Texas sent a letter to parents informing them that photographs of students would henceforth be considered "directory information."[13] Because of this designation, parents were afforded the opportunity to exclude their child's picture and information -- including photos taken or information acquired solely by student yearbook staff members -- from the school's student-edited yearbook.[14] Similarly, other schools have begun to prohibit the publication of student names or photos without the prior written consent of the student's parent. In such cases, student media would presumably be forced to keep a list of "approved" (or "non-approved") students. The student media would only be allowed to publish the names or photos of students on the "approved" list; students not on this list apparently would be off-limits. Presumably, students who might be the subject of less than flattering news would be able to exercise an "editorial veto" over the student media simply by withholding their consent.

In addition to destroying the student media's reputation as a credible source of news and information, such policies also present a logistical nightmare. Student journalists, already working under the constraints of deadlines and sometimes unfriendly administrations, would be forced to consult an ever-changing master list of approved subjects before writing or publishing a story. Moreover, under such a complicated scheme it is inevitable that mistakes will occasionally be made by students or school officials resulting in the publication of "unapproved" names or photos. Such mistakes could expose a school district to liability that had previously not existed.

Finally, these policies may have serious legal implications for the student media. Every libel law primer begins with essentially the same advice: publish only complete and accurate information. The new FERPA policies require student media to violate those fundamental rules. By requiring the publication of misleading or incomplete information, a strong argument can be made that the new policies increase, not decrease, the odds that student media-and possibly the school district that created such a faulty system-will be subjected to libel or invasion of privacy lawsuits.

It is unclear why school district lawyers and other administrators have recently tried to enforce such policy changes. FERPA does not require it, the Constitution almost certainly prohibits it-and common sense suggests the system is fraught with danger. There are many problems in today's education system that school officials would be wise to address. As the following makes clear, this is not one of them.

FERPA and the Courts

There are few cases dealing with the application of FERPA to the student media. The extension of the law to the student media has occurred so rapidly and recently that courts have had little opportunity to deal with the many issues it raises. A few courts, however, have attempted to define FERPA's scope. These cases indicate that the application of FERPA to the student media is an illogical and unlawful interpretation of the Act.

In their ill-conceived attempts to use FERPA as their excuse for banning student names and photos in student media, school administrators generally seem to have lost sight of one thing: FERPA only prohibits schools and school employees from disclosing student education records without consent.

In order to subject the student media to FERPA, it is necessary to include them in its definition of "educational agency or institution," which the Act defines as "any public or private agency or institution which is the recipient of federal funds under any applicable program."[15] To categorize them as such, a court would first need to rule that student journalists are employees or agents of their school, a classification so far rejected by every court asked to consider the question.[16]

As one federal court of appeals wrote in rejecting a claim that high school student journalists were the equivalent of school officials:

Of course, the fact that the newspaper editors are public school students does not, in itself, make them state actors. Persons do not become state actors because they are clients of government services, whether they are students, hospital patients, or prison inmates.[17]

Even the Supreme Court's decision in Hazelwood School District v. Kuhlmeier appears to make a critical distinction between a school and its student media.[18] The Court reasoned that schools should be able to censor material that "the public might reasonably perceive to bear the imprimatur of the school," (emphasis added).[19] The distinction is subtle but apparent. The Court did not justify its decision on the grounds that the student media acts as an agent of the school, speaking on its behalf. To make such an argument would be to say that the First Amendment is not implicated at all by administrators' attempts to control its content because a school could never unconstitutionally "censor" itself. Hazelwood, however, requires school administrators to show that their actions are "reasonably related to legitimate pedagogical concerns."[20] By invoking the First Amendment, the Court in Hazelwood implicitly rejects the argument that student journalists act as agents of their schools.[21]

Most pointedly, a federal district court in New York rejected a school principal's claim that FERPA required him to confiscate copies of the school paper because it contained "confidential" information about students. The court in Frasca v. Andrews agreed that the paper contained information that would otherwise fall within the scope of FERPA.[22] The Court refused, however, to extend FERPA to the student media, stating "the prohibitions of the amendment cannot be deemed to extend to information which is derived from a source independent of school records."[23]

FERPA and the Department of Education

The Department of Education is responsible for investigating FERPA claims, enforcing the Act when a violation occurs and issuing regulations regarding its enforcement.[24] While the Department's official regulations do not explicitly address the application of FERPA to the student media, the Department has said that it does not consider the student media subject to the Act.

For example, in at least one instance, the Department refused to enforce FERPA against the student media. In response to a filed complaint, the Director of the Family Policy Compliance Office rejected the contention that the editor of a campus newspaper violated FERPA by disclosing information contained in a police report. "FERPA was not intended to apply to campus newspapers or records maintained by campus newspapers. Rather, FERPA applies to 'education records' maintained by an educational agency or institution, or by a person acting for such agency or institution."[25]

The National Center for Education Statistics, an arm of the Department of Education, also released a summary of FERPA that appears to place the student media beyond the Act's reach. The Center explains that "FERPA applies to public schools and state or local education agencies."[26] In defining the "agencies" subject to the Act, the Center explains that these "generally include public elementary and secondary schools, school districts, intermediate education agencies, and state education agencies or their representatives."[27] The Center gives no indication that FERPA is applicable to the student media. Most importantly, it should be noted that the Department of Education has never enforced a FERPA claim against the student media. After more than 25 years of investigating and enforcing FERPA complaints, there is no evidence that the Department has ever so much as considered subjecting the student media to FERPA -- which makes school administrators' recent attempts to subject the student media to the Act all the more puzzling.

FERPA and the First Amendment

Perhaps the simplest explanation for the Department of Education's refusal to enforce FERPA against the student media is that such a policy would be unconstitutional.

In the Frasca case, discussed above, the court stated flatly that "Congress could not have constitutionally prohibited comment on, or discussion of, facts about a student which were learned independently of his school records."[28] This is consistent with a number of Supreme Court decisions holding that the government may not restrict the press from reporting independently gathered information where such information is newsworthy and accurate. In Oklahoma Publishing Co v. District Court,[29] the Supreme Court struck down a district court rule that prohibited the news media from publishing, broadcasting or disseminating the name or picture of a juvenile defendant. Similarly, in Smith v. Daily Mail Publishing Co.,[30] the Court struck down a state statute that made it a crime for a newspaper to publish, without prior approval, the name of any youth charged as a juvenile offender. The Smith Court rejected the state's argument -- an argument now being echoed by school officials -- that its interest in protecting the identity of juveniles was significant enough to override First Amendment concerns.[31]

In some cases, school officials have claimed that the Supreme Court's decision in Hazelwood gives them the authority to use FERPA against their student media. While Hazelwood does give school officials greater leeway when it comes to regulating some student media, such authority is separate from that conveyed by FERPA -- and certainly not unlimited. First, Hazelwood does not apply to all student media. For example, college media are not covered.[32] Nor are high school publications that have -- by policy or practice -- established themselves as public forums.[33] Second, even where Hazelwood does apply, it is difficult to imagine a court upholding a blanket policy that prohibits the publication of lawfully obtained student names or photos in its student media without regard to context. Hazelwood lowers the First Amendment protections against administrative censorship; it does not eliminate them.[34]

The only context in which material published in a student publication might implicate FERPA is where school officials admit that they, not students, are determining the content of the publication. Such an admission would, of course, raise serious First Amendment questions. But as long as the content choices originate with students (which seems the very nature of a "student" publication), FERPA should not come into play.

Although many school administrators have chosen to apply FERPA only to online student media, the foregoing analysis still applies. The Supreme Court has made no distinction between the First Amendment rights of print media and those of online media. In Reno v. American Civil Liberties Union, the Court explicitly rejected the argument that online media were entitled to a lesser level of First Amendment protection.[35]

Conclusion

In its lifetime, FERPA has served some noble purposes. By requiring that students and parents have access to their own education records, the Act encourages a healthy sort of disclosure. By penalizing schools and government agencies that randomly release academic information to third parties, the Act legitimately protects the privacy of students.

Unfortunately, recent attempts by some school officials to use FERPA to prohibit the publication of lawfully obtained, accurate and newsworthy information by student media stretch the bounds of the law, not to mention common sense. For more than a quarter of a century, student media, like all news organizations, have sought to report complete and accurate news about their school communities and the issues that affect them. Such reporting necessarily has included the regular and careful use of student names and photos. At no point has there ever been any credible claim that such reporting was prohibited by federal law. Such an application is not supported by the text of the law or by the Department of Education's enforcement. Such a reading is almost certainly unconstitutional.

The recent use of FERPA against student media by creative, but misinformed, school administrators appeared literally out of the blue. One can only hope that it will soon disappear the same way. The student media's vitality should not be sapped by an unreasonable interpretation of an otherwise commendable law.

Notes:

1 20 U.S.C. §1232g.
2 FERPA was enacted as a replacement for §438 of the General Educational Provisions Act. FERPA itself has since been modified six times, most recently in 1998 by the Higher Education Amendments of 1998. Department of Education, Legislative History of Major FERPA Provisions, available at http://www.ed.gov/offices/OM/fpco/Legislativehistory.html, (viewed March 2, 2001).
3 20 U.S.C. §1232g (a)(4)(A).
4 20 U.S.C. §1232g(a)(1)(A). As a "spending clause," enacted under Art. I, §8 of the United States Constitution, FERPA works to deny funding to any school or educational agency that violates its terms. See Department of Education, Legislative History of Major FERPA Provisions, available at http://www.ed.gov/offices/OM/fpco/Legislativehistory.html, (viewed March 2, 2001).
5 Id.
6 20 U.S.C. §1232g(b)(1), (2).
7 20 U.S.C. §1232g(b)(1)(A), (B), (C), (D), (E), (F), (G), (H), (I), (J). The Act also exempts authorized representatives of the Comptroller General of the United States, the Secretary of Education, state educational authorities, organizations conducting educational studies, accrediting organizations, and persons connected to a student's application for financial aid.
8 34 CFR §99.3 (2000).
9 20 U.S.C. §1232g(a)(5)(A).
10 20 U.S.C. §1232g(a)(5)(B).
11 National Center for Education Statistics, Protecting the Privacy of Student Records, Section 2, available at http://nces.ed.gov/pubs97/p97527/SEC2_TXT.htm, (viewed March 16, 2001).
12 See National Center for Education Statistics, Protecting the Privacy of Student Records, available at http://nces.ed.gov/pubs97/97859.html, (viewed March 2, 2001).
13 Letter from Dr. David Anthony, Office of the Superintendent, McKinney Independent School District (October 2000).
14 Id.
15 20 U.S.C. §1232g(a)(3). Courts have, however, construed this section of the Act narrowly. In Kneeland v. NCAA, 650 F.Supp. 1076 (W.D. Tex. 1986), the Court rejected, without comment, the plaintiff's argument that the National Collegiate Athletic Association should be considered an "educational agency or institution" under FERPA. See also Arkansas Gazette Co v. Southern State College, et al., 620 S.W.2d 258 (Ark. 1981).
16 See, e.g., Yeo v. Lexington, 131 F.3d 241 (1st Cir. 1997)(en banc), cert. denied, 524 U.S. 904 (1998); Leeds v. Meltz, 898 F. Supp. 146 (E.D.N.Y. 1995); Sinn v. Daily Nebraskan, 829 F.2d 662 (8th Cir. 1987); Mississippi Gay Alliance v. Goudelock, 536 F.2d 1073 (5th Cir. 1976).
17 Yeo, 131 F.3d at 253.
18 See Hazelwood School District v. Kuhlmeier, 484 U.S. 260 (1988).
19 Id. at 271.
20 Id. at 273.
21 See also, Yeo, 131 F.3d at 250, n. 8: "Hazelwood did not create a new state action analysis that any school-sponsored activity which bears an imprimatur of the school thus constitutes state action."
22 See Frasca v. Andrews, 463 F. Supp. 1043, 1050 (E.D.N.Y. 1979).
23 Id. The Court held, however, that the printed material was likely to cause a "substantial disruption," and so rejected plaintiffs' claim for a preliminary injunction to prevent the principal from barring distribution of the issue.
24 20 U.S.C. §1232g(f).
25 Letter from LeRoy S. Rooker, Director, Family Policy Compliance Office (Sept. 20, 1993).
26 National Center for Education Statistics, supra note 10.
27 National Center for Education Statistics, supra note 9.
28 Frasca, supra note 18, at 1050.
29 See Oklahoma Publishing Co v. District Court in and for Oklahoma County, Oklahoma, 430 U.S. 308 (1977).
30 See Smith v. Daily Mail Publishing Co.. 443 U.S. 97 (1979).
31 Id. at 104.
32 See, e.g., Kincaid v. Gibson, 236 F.3d 342 (6th Cir. 2001)(en banc).
33 Hazelwood, 484 U.S. at 267.
34 See, e.g., Desilets v. Clearview Regional Bd. of Educ., 647 A.2d 150 (N.J. 1994).
35 Reno v. American Civil Liberties Union, 521 U.S. 844, 869 (1997).


reports, Spring 2001