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Reporter’s Guide to FERPA
Navigating the Family Educational Rights
and Privacy Act

FERPA Often Misconstrued

By Sonny Albarado

In Milwaukee, the editor of a student newspaper sued when a university refuses to release records of a school policy-making board because revealing information about the board’s student members — including their names and their recorded voices — might violate a federal privacy law.

In Little Rock, the largest daily newspaper in Arkansas fought a university’s refusal to release a list of scholarship recipients who received the financial aid on no discernable basis and at the whim of the university president. School officials also claimed that releasing the list might violate the federal privacy law known as FERPA (the Family Educational Rights and Privacy Act), or the Buckley Amendment.

In the Wisconsin case, the University of Wisconsin-Milwaukee sought advice from the U.S. Department of Justice, then settled the case in February 2010 by turning over the requested documents and recordings to the UWM Post. The college also agreed to pay the student paper’s attorneys more than $11,700 in fees.

In Arkansas, the University of Central Arkansas asked the U.S. Department of Education whether the names of the students and the amounts of the scholarships “constitute ‘personally identifiable information’ under FERPA in that it is financial information.”

In May 2009, the Education Department’s director of Family Policy Compliance Office, Paul Gammill, opined in a letter to UCA that it could not make public scholarship recipient information “in situations where the basis for the scholarship is undefined or could be need based or related to a student’s financial need.”

Rick Peltz, a University of Arkansas at Little Rock law professor and freedom-of-information expert, told the Arkansas Democrat-Gazette that the Education Department opinion was “an accurate assessment of federal law, and I think it’s tragic.”

But the newspaper didn’t give up on its public records quest, and as this was being written, the Obama administration informed the Democrat-Gazette that Gammill no longer heads the FERPA compliance office and invited the newspaper to resubmit its FOIA request.

It appears the Arkansas newspaper has reason to hope that sanity will prevail in its case as rationalism seems to have worked in Wisconsin.

But the two stories reveal the wildly divergent applications of FERPA in the nearly 36 years since Congress passed the law in 1974.
In fact, school administrators often proclaim that the law is unclear and cite that lack of clarity in hiding behind it rather than opting for openness, even in the most mundane of circumstances.

Kansas City-based author David Chartrand cites in an essay in this Web site cases in which public school system spokesmen denied him copies of graduation programs on the basis of FERPA’s privacy protections.

A 2009 article on the Student Press Law Center Web site says FERPA “has become a roadblock for student and professional journalists covering education, and its vague definitions and broad — sometimes conflicting — interpretations have led schools to apply the law in ways its sponsor never intended.”

Indeed, former U.S. Senator James Buckley told the Columbus Dispatch in Ohio that he never imagined some of the uses to which schools have put the law he sponsored.

In a May 2009 investigation of how college athletic departments construe and apply FERPA in response to public records requests, the Dispatch found that the law’s conflicting interpretations make it almost impossible to determine what goes on inside the $5 billion college sports world.

Buckley told the newspaper: “The law needs to be revamped. Institutions are putting their own meaning into the law.”

So, as journalists and other transparency advocates push for FERPA reform, the time is right for a Web site for journalists that explains the law, offers advice on how to make it work to a reporter’s advantage and provides story ideas.

This is that Web site.

> Next: FERPA Nuts and Bolts

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