Blog
Fighting back on excessive FERPA secrecy
- By: ASNE staff
- On: 06/26/2014 10:35:36
- In: Freedom of the press
The Family Educational Rights and Privacy Act (FERPA) has, for some time, been a serious impediment to anyone reporting on education issues, especially campus crime issues. The law is intended to prevent access to educational records -- and most of us wouldn't quarrel with the idea that a reporter or anyone else can't get access to a student's grades or transcripts -- but that definition is often extended to things that bear no reasonable relationship to the educational process (It's often invoked by university athletic departments to cover up student-athlete scandals.).
The Family Educational Rights and Privacy Act (FERPA) has, for some time, been a serious impediment to anyone reporting on education issues, especially campus crime issues. The law is intended to prevent access to educational records -- and most of us wouldn't quarrel with the idea that a reporter or anyone else can't get access to a student's grades or transcripts -- but that definition is often extended to things that bear no reasonable relationship to the educational process (It's often invoked by university athletic departments to cover up student-athlete scandals.).
ASNE has been pretty active in fighting back against over-invocation of FERPA. We have joined amicus briefs in FERPA-related cases, made our concerns known to members of Congress, and urged the Department of Education to engage in more oversight of and enforcement against institutions that play fast and loose with the law. (Part of the problem is that FERPA has just one penalty for non-compliance: loss of federal funding; the extreme nature of this penalty means it has never once been employed.)
Sen.Edward Markey, D-Mass., joined by Sen. Orrin Hatch, R-Utah, recently circulated draft legislation intended to amend FERPA in certain limited ways. Read Sen. Markey's draft legislation. The bill would largely safeguard against the inadvertent release of information protected by FERPA, but the Student Press Law Center has concerns about some aspects of that bill and also hopes that it could be a vehicle for FERPA reform. SPLC Executive Director Frank LoMonte recently wrote a blog post about those concerns and called the bill "at best, a swing-and-a-miss at the larger problems afflicting federal privacy law. At worst, it's a damaging setback for the public's right to know."
SPLC then relayed these concerns directly to senators Markey and Hatch in a letter. ASNE was one of six media organizations to sign this letter, which offers our assistance in explaining the current problems with FERPA and some suggestions for fixing the law. These include creating a more layered penalty system within FERPA to combat the "overcompliance" problem and spur Department of Education enforcement, especially where purposeful, bad-faith misclassification of documents occurs, seeking a better definition of "educational records," which applies the definition only in those cases where there is a reasonable expectation of privacy in the records, and ensuring FERPA doesn't get worse by removing a provision in this bill, which appears to expand the scope of FERPA, by expanding the law to "educational records" and "personally identifiable information in several instances.