House bill would permit students to sue schools for violating FERPA
Open-records advocates say the bill would make schools hesitant to release campus crime records

© 2003 Student Press Law Center

October 2, 2003

WASHINGTON, D.C. –– Under a bill awaiting consideration in the U.S. House, students and parents could sue schools for disclosing student records without their consent, potentially giving universities an even greater incentive to restrict media access to campus crime information.

Rep. Robert E. Andrews, D-N.J., proposed the bill last April as an amendment to the Family Educational Rights and Privacy Act, a federal law that regulates the release of student educational records to the public. The bill would permit students and parents to sue schools that receive federal aid for erroneously releasing information made private under FERPA if that disclosure proves harmful.

HR 1848 would also permit lawsuits from college applicants whose application information was disclosed as well as third parties who might be harmed by the release of a student's records.

Since FERPA went into effect in 1976, schools can be penalized with the loss of federal financial aid funds if they have a "practice or policy" of disclosing student education records without consent, although no university has ever been punished because of a FERPA violation, according to Department of Education officials.

The bill is a reaction to a U.S. Supreme Court case last year in which a former college student, Ru Paster, argued that he had the right to sue Gonzaga University under FERPA. Paster sued for violation of privacy when a Gonzaga administrator released inaccurate information about him to a prospective employer, which he said prevented him from getting work as a teacher in Washington state. The court sided with Gonzaga, ruling that FERPA does not allow individuals to sue.

Paster was awarded more than $700,000 in defamation damages in a separate lawsuit under state law.

Universities are opposing the bill out of a fear that petty lawsuits would bog down school finances.

Daren Bakst, president and general counsel of the Council on Law in Higher Education, said the bill is unnecessary.

"State law protects students seeking damages, just as it did in the Gonzaga case," Bakst said. "The bill will create a litigation nightmare for schools and a lot of frivolous lawsuits."

Controversy over FERPA has intensified this year as Congress prepares to reauthorize the Higher Education Act, the law that regulates almost all financial aid for universities, and of which FERPA is a part.

FERPA's broad student privacy protection has frustrated many journalists seeking to expose student crime records to the public. Under FERPA, schools are allowed –– but not required –– to release the final results of student disciplinary hearings involving violent crimes and nonforcible sex offenses. Campus police and security department records are not covered by FERPA.

S. Daniel Carter, senior vice president of Security on Campus Inc., a nonprofit organization that advocates campus safety, said the bill will create a fear of lawsuits and make universities even more hesitant to release campus crime information to the media and public.

Greg Lukianoff, director of legal and public advocacy at the Foundation for Individual Rights and Education, agreed that campus crime records should be more accessible, but he said the bill would still improve FERPA.

"HR 1848 will keep universities honest in regards to FERPA," Lukianoff said. "Currently, universities have too much arbitrary power to disclose confidential records."

Lukianoff added that FERPA generally does more harm than good and needs quite a few amendments.

Rep. Andrews said he introduced the bill to create more ways to punish schools for violating student privacy.

The bill is awaiting a hearing by the House Subcommittee on Courts, the Internet, and Intellectual Property.

Another bill attempting to amend FERPA, the David Schick Honesty and Campus Justice Act, would require schools to reveal the final results of student disciplinary hearings to victims of violent crimes and nonforcible sex offenses.

Carter said the Schick proposal is a step in the right direction for campus safety and open records, but added it should be broadened to require public disclosure of student disciplinary records involving violent crime and nonforcible sex offenses.

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For More Information: Read previous coverage:

• Proposed FERPA amendment requires disclosure of some disciplinary records News Flash, 9/30/2003
  
• Supreme Court decision in student privacy case could improve access to campus crime records News Flash, 6/20/2002