Good intentions don’t necessarily make good laws. And so it is with the student privacy law known as FERPA, which has been used to cover up what the public is entitled to know when things go wrong — as they did, horribly, at Marjory Stoneman Douglas High School last Valentine’s Day.
The law even appears to contribute to such tragic outcomes.
We’re speaking about the Family Educational Rights and Privacy Act, commonly called FERPA, which Congress enacted in 1974 to give parents the right to inspect and challenge their children’s school records.
However well-intended, this law has become a convenient excuse for school and college bureaucrats — and their lawyers — to withhold information the public is entitled to know about such serious events as a serial rapist on a campus, academic favoritism to athletes, biased admission policies, and accidental injuries and deaths. College counselors claim it even bars them from warning parents of students who are suicidal.
One of the haunting questions from the massacre of 17 students and staff at Parkland — and the wounding of 17 more — is whether FERPA kept Broward school personnel from alerting law enforcement to the menacing behavior of Nikolas Cruz, the former student charged with the murders.
The state commission investigating the tragedy clearly considers FERPA at some fault. Its draft report, to be voted on this week, calls for eliminating such “barriers to information sharing.” Moreover, it implies that the Broward school district stretched its interpretation of the law too far.
“All stakeholders’ personnel must be trained in the application of privacy laws and importantly all applicable exceptions,” the draft report remarks.
Pinellas County Sheriff Bob Gualtieri, who chairs the MSD Commission, said in a Thursday email that his colleagues wholeheartedly agree the law “needs to be changed and information needs to flow much more freely under circumstances such as this.
“FERPA, HIPAA and other privacy laws are important and have their place,” he wrote, “but they have become de facto shields for ‘bad stuff’ that should be in the public eye.”
The Parkland commission’s draft is good, as far as it goes. And Reps. Ted Deutch, Debbie Wasserman Schultz and the rest of Florida’s congressional delegation should act immediately to implement it.
But they need to do more.
It’s evident that FERPA permeated the Broward school district’s pervasive and continuing cover-up of what its personnel knew about Cruz, and what they did or didn’t do to prevent a deeply troubled student from becoming a mass murderer.
As our reporters Brittany Wallman, Megan O’Matz and Paula McMahon wrote last week, FERPA seals information even on an admitted killer like Cruz, who is an adult and no longer a student.
At a minimum, the law must be changed to free up information pertaining to anyone who has been charged with a felony, and to allow school and college administrators to warn parents and law enforcement of potential tragedies.
Judges also should be empowered to open student records for good cause to members of the media and the public who seek to hold government accountable under the First Amendment.
FERPA, and a Florida law modeled on it, block federal funds to any educational program that denies parents inspection rights or releases records that easily identify a child or parent without their permission. Limited exceptions apply, including for undefined health and safety emergencies.
Schools and colleges have been suspiciously eager to invoke FERPA, though no institution has ever lost federal funds for providing information about matters of great public importance — or anything at all, for that matter.
The U.S. Department of Education did, however, successfully sue the Chronicle of Higher Education to suppress records pertaining to discipline at Miami University and Ohio State University. The Ohio Supreme Court sided with the publication, holding that the files were primarily law enforcement records, not education records. But the Sixth U.S. Circuit Court of Appeals sided with the government, saying Congress had failed to adequately define “education records.”
FERPA attracted less attention when it was enacted than it has since. Reporting on its passage, the New York Times said it “was prompted by increasing parent hostility to largely experimental federal-state teaching programs that include lengthy personal questionnaires about a pupil’s home life, racial and sexual attitudes and relationships with others in stress situations.” It was introduced by then-New York Sen. James Buckley, who represented both the Conservative and Republican parties, and backed by the American Civil Liberties Union.
As often happens, the reform went far beyond the problem at hand.
“When universities want to deny public access to information that might blemish their reputations, they routinely claim that FERPA prohibits them from disclosing such information — even when disclosure is plainly warranted,” Jon Krakauer wrote in the New York Times Magazine of his difficulty in working on a book about campus rape in Montana.
In Florida, the Associated Press and other news organizations fought a FERPA battle with the National Collegiate Athletic Association in 2009 over the transcripts of Florida State University’s appeal of penalties for improper assistance to athletes. The First District Court of Appeal upheld a circuit court decision that the documents, having been received by a state agency, were public and not protected by FERPA because they did not contain “information directly related to a student.” Rather, they dealt with “allegations of misconduct” by the athletic department and only “tangentially” with the students who benefitted, the court said. But the names of the students remained protected.
In 2006, Florida’s Fifth District Court of Appeal ruled that FERPA did not apply to the release of the names of University of Central Florida student government officers accused of misconduct. They had waived privacy by campaigning publicly for the offices, the court said. But Knight News, the plaintiff, was denied access to the hearings and other details that it sought.
At the University of Florida, it took a lawsuit for a requester to get the video of a public meeting of the Student Senate.
All such cases are expensive, not only to the plaintiffs, but to the public, whose taxes finance the stonewalling.
“No amount of fine-tuning is going to fix FERPA, which is catastrophically broken and needs to be rewritten completely,” says Frank Daniel LoMonte, professor and director of the university’s Brechner Center for Freedom of Information.
We agree.
