A (rare) faithful reading of FERPA: Court says federal privacy law doesn't penalize one-time release of records



A college student is threatened with expulsion after being told multiple witnesses heard him make disturbing remarks about "shooting up" the campus. 

Before the disciplinary hearing where he'll have the chance to defend himself, the student files a public-records request for the campus police department's closed investigative file.

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The university responds that the file is confidential, because it contains the names of student witnesses -- and those names, the university claims, are protected against disclosure by federal privacy law.

Wrong, says a Connecticut judge, whose Nov. 16 ruling finds that the Family Educational Rights and Privacy Act should not have foreclosed Austin Haughwout's access to police records needed to prepare for his hearing.

Haughwout, 19, sued administrators of Central Connecticut State University alleging that the college wrongfully expelled him in October 2015. 

Initially, he and his counsel believed the expulsion was motivated by a professor's complaint, after Haughwart was featured in news articles as the inventor of a gun-equipped drone aircraft. As it turns out, the university didn't even mention that complaint as part of the disciplinary case. 

Instead, the case focused on statements by four students (related to the disciplinary board by a CCSU administrator who interviewed them) that Haughwout frequently talked about guns, at times making people so uncomfortable they avoided him. One witness was quoted as saying Haughwout identified a particular classmate as his "number one target" to be shot, and that he wondered aloud about how many bullets it would take to "shoot up" the campus. (More about that free-speech issue later...)

Campus police determined that Haughwout's remarks amounted to criminal threat speech and applied for an arrest warrant, but the state's attorney declined to authorize the arrest and closed the case without prosecution. Nevertheless, CCSU brought Haughwout up on student conduct charges and expelled him.

Haughwout alleged that the October 2015 disciplinary hearing was so unfair that it violated his right to due process, in part because he was denied advance access to the statements of witnesses incriminating him and thus unable to prepare a defense.

CCSU countered that Haughwout was not entitled to see campus police reports or the warrant application because of FERPA, a privacy statute that carries penalties for educational institutions that maintain a "policy or practice" of disclosing students' "education records."

Superior Court Judge Joseph M. Shortall was unconvinced by the privacy argument.  

In his ruling, the judge pointed out that FERPA expressly excludes records "maintained by a law enforcement unit of the educational institution that were created by the law enforcement unit for the purpose of law enforcement." So the records may never have been subject to FERPA at all.

Even if CCSU was correct that records can become FERPA-protected when they pass from law enforcement to campus disciplinary authorities -- a legal question that remains unsettled -- the judge said FERPA cannot be understood as an absolute proscription against disclosure when common sense necessitates it:

The court … does not read FERPA as prohibiting any such disclosure at any time for any purpose. What it punishes, by the withholding of federal funds, is a 'policy or practice' of permitting disclosure of educational records. Disclosure on isolated occasions as a means of providing an accused student with an extra measure of protection from unfounded charges would not seem to be prohibited by the plain language of the Act.

This is a crucial point for public-records requesters who habitually face "the FERPA excuse" whenever a public school or college is asked for records that would be inconvenient or embarrassing to produce. FERPA should be understood as it is written -- to penalize the habitual failure to maintain the security of records -- and not as college lawyers insist on rewriting it, into a prohibition against fulfilling one-time requests for records that state law makes public. 

Judge Shortall's interpretation is the only way FERPA's penalty structure can possibly make sense. 

The penalty for being declared a FERPA violator is total revocation of eligibility to receive federal education funding. CCSU receives $16.2 million a year, nearly 10 percent of its annual operating budget, from federal grants. If college lawyers are correct that disclosing one record on one occasion to one recipient constitutes a FERPA violation, then the penalty is more than $16 million. 

That is an exponentially higher punishment than any other violation of federal education standards. For instance, the fine for submitting falsified crime data to the Department of Education in violation of the Jeanne Clery Act is no more than $35,000. 

So if college lawyers are to be believed, the penalty for granting a journalist's request to inspect a public document in accordance with state law is 450 times greater than the penalty for lying about whether a rape occurred on campus.

Obviously, this can't be how FERPA works.

Nevertheless, college and school attorneys have at times convinced judges to read the words "policy and practice" out of the statute, rendering it nonsensically broad. This past fall, the Montana Supreme Court decided that FERPA precluded disclosure of files sought by author Jon Krakauer that would have shed light on why Montana's state education commissioner overturned a campus disciplinary board's finding that a prominent college athlete committed sexual assault. The ruling required indulging the hallucination that the U.S. Department of Education would de-fund a state's entire university system to punish the single release of a record that state law undeniably made public. 

The Haughwout ruling is just a state trial court's opinion and thus carries no binding weight on future courts, but every commonsense interpretation of FERPA is further evidence that the statute needs clarifying to reconcile conflicting interpretations that needlessly impede public access.

The judge's resolution of the FERPA issue did not, as it turns out, amount to any substantive relief for Haughwout. 

The court dismissed his due process claim, finding that there is no constitutional entitlement to be given the names of adverse witnesses in advance of a campus disciplinary hearing.

And the judge tossed out Haughwout's free-speech claim under the Connecticut state constitution, categorizing the gun statements as constitutionally unprotected "true threats."

Cases involving statements about violence often become a question of context. But not this time -- and that made the case more challenging to resolve.

CCSU administrators claimed two students said they were unsettled enough by Haughwout's repeated references to shooting up the campus that they'd avoid the student union building to steer clear of him. Haughwout didn't testify, "I made those remarks, but here's the context that proves they were understood to be jokes." He claimed he never said those words at all. So the disciplinary board was left with two irreconcilable extremes -- either Haughwout made multiple comments about wanting to shoot up the campus in a way that disturbed listeners, or he didn't make them at all.

That was enough for the judge to conclude that the disciplinary board could have credibly deferred to the accusers' accounts, so that the statements could be punishable as threats. 

This is a highly aggressive application of the "true threat" standard, which the Supreme Court has defined as "statements where the speaker means to communicate a serious expression of an intent to commit an act of unlawful violence to a particular individual or group of individuals." And it's interesting that the judge decided the case on that point. 

Colleges often argue that they need not afford students the "real-world" level of free-speech protection, and that they can sanction expression that would be beyond the government's punitive authority outside the campus gate. Judge Shortall implicitly found that the same constitutional protections apply on and off campus -- but that CCSU surmounted that burden by establishing that Haughwout made "true" threats. 

Courts are deferential to campus disciplinary authorities whenever a hint of violence is involved, so an appeal would face challenging odds. But the peculiarity of the disciplinary board's procedure bears close judicial scrutiny. Haughwout was expelled solely on the basis of double- and even triple-hearsay testimony of CCSU's director of student conduct, serving as both investigator and accuser, which would be inadmissible in a court of law. Where the decisive issue is whether listeners genuinely understood what they heard as threatening or did not, the first-hand testimony of those listeners -- and the ability to cross-examine them -- seems essential to the fundamentally fair hearing that due process requires.

The case is Haughwout v. Tordenti, 2016 Conn. Super. LEXIS 2886 (Conn. Super. Nov. 16, 2016).

Tagged: Central Connecticut State University, FERPA, Haughwout v. Tordenti, news, recent-news, student privacy