FERPA law too often hides what public should know

May 21, 2014 

It is one of the fundamental questions surrounding sham courses at the University of North Carolina at Chapel Hill that helped keep athletes academically eligible: How did it begin?

An answer came close to surfacing this week as the result of a News & Observer lawsuit. The N&O sued for public release of a UNC spreadsheet that lists by sport the number of athletes enrolled in the earliest-known fake classes going back to 1997. The newspaper agreed to accept the document with the names redacted, but it wanted to see the concentration of athletes by sport in classes that never met.

The request was denied by Wake County Superior Court Judge Bryan Collins out of concern that at least one athlete could become known by combining the spreadsheet with public records available on UNC’s website. But Collins’ closing a window into one scandal focused attention anew on another: the rampant misuse of a student privacy law to protect universities from embarrassment, particularly when it involves their men’s basketball and football teams.

Universities use the Family Educational Rights and Privacy Act (FERPA) as a kind of invisibility cloak to wrap around their athletics programs. UNC has pulled it particularly tight around the now years-long scandal involving academics and athletics. It has repeatedly cited the law to deny even basic requests.

At one point, UNC refused to give information on parking tickets issued to athletes, saying they were educational records. A judge ruled that tickets were public records. The university also declined to provide redacted copies of tests taken by athletes. It cited FERPA in refusing to turn over records from an investigation into basketball player P.J. Hairston’s use of rental cars loaned to him by a convicted felon.

This week, Judge Collins did the same. He wrote in his opinion, “it is abundantly clear to the Court that releasing (the spreadsheet) to the public would be in violation of the Family Educational Rights and Privacy Act.”

It was a curious and overly cautious ruling to declare that release of a redacted document would violate a student’s privacy. In an earlier instance, the university released a spreadsheet breaking down class enrollment by basketball and football athletes in bogus classes between 2006 and 2011. Denying the same for earlier classes is not protecting the student. It’s shielding the university.

FERPA has frequently been an obstacle to news agencies seeking to look into the cloistered world of college revenue sports. In 2010, the Columbus Dispatch explored how the law protected Ohio State and other big-time sports schools. It found widely different interpretations of the law and a pattern of applying the law.

The newspaper concluded that the overly broad application of FERPA “makes it virtually impossible to decipher what is going on inside a $5 billion college-sports world that is funded by fans, donors, alumni, television networks and, at most schools, taxpayers.”

In an interview, the author of the 1974 law, former U.S. Sen. James L. Buckley, said FERPA was being too broadly applied. “The law needs to be revamped. Institutions are putting their own meaning into the law,” he told the newspaper.

Lucy A. Dalglish, journalism dean at the University of Maryland, told The News & Observer at an open government meeting last year, “A lot of times FERPA is used as an excuse not to release anything.” Dalglish, former executive director of the Reporters Committee for Freedom of the Press, added, “It can get tricky, but I don’t think FERPA protection extends as broadly as a lot of schools interpret it.”

That student privacy should be respected is not in dispute. Reporters are not seeking an athlete’s grades or evaluations.

But FERPA needs to be refined in light of its multiple interpretations. Congress should revise the law to specify what is protected and make explicit what is not. And in cases where academic fraud is confirmed – especially at public universities – there should be more latitude about the release of information to the public.

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