TRANSPARENCY TUESDAY: Education Department allows access to records of employee tuition waivers



The cost of tuition has never been a hotter discussion topic. With the sticker price of a year's undergraduate education at a private university topping $28,500 a year -- and the average student graduating with more than $25,000 in loan debt -- serious questions are being raised about whether college is a sound financial investment.

Because tuition costs are pinching family budgets so uncomfortably, the public is doubly outraged when it comes to light that well-connected insiders are getting a free ride -- at a cost that inevitably ends up being passed along to the paying customers.

In recent years, journalists have brought to light questionable VIP tuition waiver programs in Illinois, where the governor and legislature just abolished a widely abused system of legislator-dispensed scholarships, and in Tennessee, where student government officers at the University of Memphis have benefited for years from free tuition covered by other students' activity fees.

The latest free-ride program facing scrutiny is in Rhode Island, where an exceptionally generous perk waives tuition not just for college and university employees, but for their spouses and children as well. State auditors are looking into the program, which according to the Providence Journal ballooned to a $10.6 million-a-year expense in 2011, more than doubling over the past five years.

Journalists investigating the Rhode Island program ran into a roadblock that will be familiar to anyone who's worked at getting public records from colleges or schools: FERPA, the Family Education Rights and Privacy Act.

FERPA, a 1974 federal statute that requires schools to enforce policies keeping "education records" confidential, too often puts public information in a privacy chokehold. Records that give away nothing legitimately confidential -- or that contain information that's already widespread public knowledge -- routinely are withheld on the basis of unfounded FERPA claims.

When the Journal sought public records identifying those who've benefited from the free-tuition program, the Rhode Island Board of Governors for Higher Education sought clarification from the U.S. Department of Education, which is charged by law with interpreting and enforcing FERPA.

In a July 27 opinion letter, the DOE gave the Journal partial relief. The DOE's top FERPA enforcer, Dale King, advised that college payroll records reflecting the value of free tuition that each employee received are not FERPA records, and therefore cannot be withheld on the basis of student confidentiality. Because these records are created and maintained for tax purposes and not for educational purposes, they do not meet FERPA's definition of "education records," King wrote.

However, the records of tuition waived for spouses and children that are kept in each college's enrollment or admission office are "education records," King advised, because they serve no tax purpose or employment purpose.

This is a common-sense distinction that -- if the DOE adheres to it consistently -- should be helpful to requesters in other situations. Rather than merely looking at whether a record contains a student name or information traceable to a particular student, the King memo suggests that schools must also consider whether the record serves a purpose that is educational in nature. If it does not, then it is not proper to withhold an otherwise-public document on the basis of FERPA.

The existence of free-tuition programs in Illinois, Tennessee and Rhode Island strongly suggests that comparable programs must exist elsewhere. In an era of 9 percent annual tuition hikes, asking which insiders have exempted themselves from paying the price has never been more relevant.

Tagged: FERPA, FOI, newsgathering, public records, Transparency Tuesday