New education privacy regulations slipping into effect at the eleventh hour of the Bush administration will make it much more difficult for journalists and parents to investigate the performance of schools and colleges, according to the Student Press Law Center, the nation's leading authority on the legal rights of student journalists.

The U.S. Department of Education has just enacted significant changes to the Family Educational Rights and Privacy Act (FERPA), also known as the Buckley Amendment, a 1974 statute intended to penalize schools that fail to adopt and enforce policies to safeguard the confidentiality of student education records. The changes are set to take effect January 8, twelve days before the end of the Bush administration.

The new rules would greatly expand the definition of what qualifies as a confidential "education record" to include even records with all names, Social Security numbers and other individually identifying information blacked out ("redacted"). This change will frustrate the ability of parents and journalists to use state open-records laws to obtain basic statistical information about school safety, discipline, academic performance and other essential matters, said attorney Frank D. LoMonte, executive director of the Student Press Law Center.

"By its own admission, the DOE made no attempt to strike a balance between legitimate privacy interests and the public's right to hold schools accountable. The DOE simply said that accountability doesn't matter and that its only concern is secrecy," LoMonte said. "DOE's interpretation flies in the face of every court ruling to interpret FERPA, and it goes well beyond what Congress intended in enacting the law."

The Student Press Law Center (SPLC) is a Washington, D.C.-area nonprofit whose mission is to advocate for free-press rights for high school and college journalists nationwide. The Center provides legal information and referral assistance at no charge to students and the educators who work with them.

Historically, schools and colleges have been instructed under FERPA to redact the names, Social Security numbers and other identifying information from student records before releasing them in compliance with an open-records request. But under the new DOE rule, schools and colleges are directed to withhold documents even if all identifying information is removed, if the school believes that the requester knows, or can figure out, the students to whom a document pertains.

As an example of how it intends the rule to work, the DOE stated that the rules will prevent a school even from confirming whether it had disciplined any student for bringing a gun onto campus, because the identity of the gun-wielding student probably would be known to people within the school.

"The public has a right to know essential safety information such as what steps administrators take when they catch a student carrying a gun into a high school. There is no legitimate 'privacy' interest in committing a felony on school grounds, and the Department's insistence on protecting the 'privacy' of a would-be school shooter over the safety interests of the public shows just how arbitrary and irrational these rules are," LoMonte said.

The DOE circulated a draft of its new FERPA rules on March 24. The SPLC joined other open-government advocates in urging the Department to refrain from expanding the scope of FERPA, noting that FERPA already is being widely abused to withhold non-confidential documents, including audit reports and jail logs, from public scrutiny. DOE refused to make any reforms to the draft rules, and reissued them in final form in the December 9, 2008, edition of the Federal Register.

"DOE's rules respond to a 'problem' that just isn't there. Not a single person came forward with evidence that any student's legitimate privacy interests have ever been compromised by an open-records request for statistical information," LoMonte said. "On the other hand, DOE is well aware that schools are routinely misapplying FERPA to deny requests for documents that cannot rationally be considered private 'education records.'" Just last month, the DOE itself issued a ruling that the University of Virginia had misapplied FERPA in requiring victims of sexual assaults to sign confidentiality agreements under which the victims agreed — under threat of discipline — that they could not discuss the outcome of disciplinary proceedings against their attackers with anyone, to protect the privacy of the rapists.

The SPLC and its volunteer attorneys successfully sued the Department of Education in 1991 on behalf of journalists at the University of Tennessee and Colorado State University, to overturn the DOE's irrational interpretation that FERPA prevented colleges from releasing campus police reports to the media. In response, Congress amended FERPA to clarify that the DOE's interpretation was wrong and that police reports are public records.

The Dec. 9 Federal Register posting is viewable at http://edocket.access.gpo.gov/2008/pdf/E8-28864.pdf.

For more information on the SPLC, go to www.splc.org.