As Education Secretary Arne Duncan prepares to step down, a look back at his views on FERPA



On Friday, media outlets reported that U.S. Secretary of Education Arne Duncan will resign from his post in September to move back to Chicago to be with his family. Deputy Secretary of Education John King will replace him in the interim, though the Obama administration said he will not be nominated as secretary.

Duncan, who has served as secretary for almost seven years, has been both applauded and criticized for many of his changes in K-12 education, from launching the Race to the Top grant program to promoting the Common Core State Standards.

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He has also been a controversial figure regarding FERPA, the Family Educational Rights and Privacy Act. The Department has never released clear guidance about what records are protected by the law, and so schools have used FERPA to deny reporters and the public access to public records — from sexual assault records to swim-meet scores.

The SPLC tracks how school districts and colleges use FERPA when they’re denying access to public records — and how legitimate those excuses are — through our FERPA Fact blog. (Duncan’s face is even used as the FERPA meter.)

I dug through the SPLC archives to find four prominent times Duncan commented on FERPA’s reach.

1. In 2014, the Department of Education announced it would join the University of Montana’s appeal of a district-court order requiring the disclosure of public records about how the university system handled a star football player’s disciplinary appeal in a sexual assault case. The SPLC sent a letter to Duncan asking him to cease its involvement in the case.

“Time after time, the Department has stood by idly as schools have forced families to go to court to contest the frivolous misuse of FERPA to obtain records to which they plainly were entitled,” the letter said. “It is amply well-documented that colleges misuse FERPA to mislead the public about how they respond — or don’t respond — to reports of sexual assault … It is astonishing that the sole statement from your Department about FERPA and sexual assault on college campuses is a statement in favor of the continued concealment that has allowed violent crime to fester for so long to the detriment of so many.”

In July of 2015, the records-request case was appealed — for the second time — to the Montana Supreme Court.

2. In 2013, former SPLC reporter Sara Gregory asked Duncan on a press call if the Department of Education had plans to issue any sort of guidance to schools to help stop the misapplication of FERPA. Duncan said journalists who received a dubious claim of FERPA confidentiality can tell the Education Department’s chief privacy officer, Kathleen Styles.

“We always try to do our best to provide very clear guidance and try and strike that balance between absolutely maintaining privacy, but also as much as we can, absolute transparency,” Duncan said. “Where districts or schools are — I’m not saying they are — but if they’re sort of hiding behind FERPA and not sharing simple information, we’re happy to try and assist there.”

3. In 2011, the Education Department proposed new student privacy regulations that also clarify “that states have the flexibility to share school data that are necessary to judge the effectiveness of government investments in education.” The changes, meant to prevent marketers and criminals from gaining access to the information, included allowing schools to limit the release of “directory information,” like students’ names and addresses, to “specific parties, [or] for specific purposes. The department did not specify how a school should decide who can obtain the information.

“We need common-sense rules that strengthen privacy protections and allow for meaningful uses of data,” Duncan said in a statement.

The department also created the position of chief privacy officer, tasked with administering FERPA and other federal privacy laws.

These were the first changes to FERPA regulation during the Obama presidency, and SPLC Executive Director Frank LoMonte was quoted as saying that the changes did not provide a solution to the overuse of FERPA.

“The public and Congress have given the Department several years to recognize, acknowledge and rectify the overbreadth of FERPA, and today the Department has made clear it has no interest in doing so,” he said.

4. In 2010, Duncan was quoted as saying: “If it was up to me and the law allowed it, I would put out student attendance data and hold parents accountable. And while we’re at it, let’s put out funding and facilities data and hold school boards and politicians accountable.” LoMonte wrote a blog post criticizing Duncan for calling for greater transparency while running an agency that has classified increasingly more information as confidential.

“Secretary Duncan, it is ‘up to you,’” LoMonte wrote. “The courts have been abundantly clear — over and over — that the scope of FERPA is more limited than your agency acknowledges. The public is entitled to more information than schools and colleges are releasing.”

Tagged: Arne Duncan, FERPA, recent-news