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

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FERPA Tales: It Doesn’t Always Apply

By David Chartrand

The research on my next book required a recent lunch menu from our local junior high school. Don’t even ask.

I phoned the School District’s Propaganda Ministry. That isn’t the agency’s official title. It was my little joke after a career of writing about the nation’s educational system and those who manage it. It would be an exaggeration to say that I spent all my time prying public information from the grip of those who considered it private. I only spent half my time doing that.

“We’ll be happy to research that for you,” said the assistant superintendent for operations (real title). “My secretary will fax over the request form.”

“What form? Research what?”

“A records request form,” he said. “The state open records law requires a written request.”

I could tell the guy had handled journalists before. I could tell he’d given this explanation before. I could also tell he was in no mood for questions.

The he added the F-Word.

“Such requests are covered under FERPA.”

He said this casually, the way your car dealer might say, “Such repairs are no longer covered under your warranty.”

He said it as though “covered under FERPA” were his standard reply for every request. It was. The school system responded, “Covered under FERPA” to all information requests, including those that involved the distribution of chocolate milk and beenie weenies.

The rest of the conversation was one of those macho telephone standoffs to see which person can remain silent the longest — or which one blinks first.

I quickly calculated the costs of an extended legal battle over the release of a school lunch menu, not counting personal jail time. I blinked.

It happened again, a few months later. I requested a copy of a recent high school commencement program. By “program” I mean a piece of plain copy paper, folded in half, bearing the names of 500 graduates and the class theme song. I mean the sole surviving record of a highly secret ceremony attended by thousands of friends, relatives and loved ones. I think the local daily even sent a camera crew.

“We’ll be happy to research that for you. My secretary will fax over ... ”

As before, the school Propaganda Minister swore he knew the provisions of FERPA and prayed that I did not.

He didn’t; I did. A commencement program “releases” the names of private individuals in the same way your driver’s license “releases” your photograph. Neither one tramples anyone’s constitutional rights, unless there exists constitutional protection from being to carry around laminated photographs that make one look like a prison escapee.

Using the federal Family Educational Rights and Privacy Act to dodge journalists has become a highly skilled sport among those who manage the flow of information at American schools and universities. “FERPA” continues the American tradition of turning nouns and proper names into active verbs.

My mother referred to vaccuuming the carpet as “hoovering.” Still does. “Ferping” — rhymes with burping — refers to efforts by government to interfere with legitimate news coverage on the grounds of protecting someone’s privacy, usually the government’s.

At least that’s what I call it. Ferping. Something done by ferpulators — ferpsters, for short.

State “open records” laws once were the oxymoron of choice for stonewalling campus bureaucrats. Most states, however, now require that statutes be printed in plain English, a happy development for which we have a generation of Hispanic immigrants to thank.

It takes great effort to hide public information from a well-written, unambiguous state records statute. God knows, many government officials still try.

There being no such thing as a well-written, unambiguous federal law, FERPA has swept the nation like a flu virus. Ferping has created an epidemic of unrest among those whose job it is to protect the public’s right to know whatever it is we think the public wants to know. The Freedom of Information Committee of the Society of Professional Journalists now considers ferping a major threat to the coverage of public education. FOI vs. FERPA — an apocalyptic battle of the acronyms.

The most entertaining events at journalism conventions remain the war stories of salty investigation journalists who break into Pentagon files and toppled Presidents. Not far behind, however are the tales of government ferping.

Frank LoMonte’s favorite FERPA story involves the University of Virginia’s official intervention on behalf of a student rape victim.

According to LoMonte, executive director of the Student Press Law Center in Arlington, Va., the University required the victim to sign a pledge of confidentiality on behalf of the rapist. I am not kidding; neither is LoMonte. University of Virginia rape victims were warned not to discuss the crime with anyone, or risk violating the FERPA rights of the rapist. Violated women who violated the agreement were subject to campus discipline, presumably something more painful than rape.

The U.S. Department of Education got wind of this and handed the case over to its Division of Empty Gestures, which slapped the University with something known, in technical government terms, as an “admonishment” (presumably a punishment less painful than rape.) The Press Law Center reports that this process took four years, which, LoMonte says, restored his lack of faith in the functionality of inert and highly bloated government institutions.

Editors at the University of Wisconsin-Milwaukee campus newspaper recently renewed my faith in college journalists. The university insisted that any documentation or recording of official campus meetings was a confidential “educational record.” The campus journalists filed suit. The University defended its interpretation of FERPA. The cheese stands alone.

Campus ferpsters have become so creative that the time has come for the Society of Professional Journalists to endow a special award for Hubris in Creative Ferpulation. Nominees would include universities in Arkansas that refused to release the names of student scholarship recipients — news that most schools announce proudly and loudly. Thanks to a pesky journalist, the universities in question discovered that FERPA contains no language permitting them to dispense secret scholarships like complimentary breath mints — scholarships awarded with no regard for educational merit but considerable regard for political influence. One can only imagine the sparkling repartee between campus administrators and outside legal counsel during which it was agreed there existed a difference between monumentally stupid decisions made in public and those made in secret.

Most alarming are FERPA interpretations that have compromised the health and safety students. This occurs when school administrators weigh the merits of “privacy” versus the merits of saving lives. Many choose privacy.

FERPA contains exemptions that clearly authorize school administrators to take steps (i.e., contact doctors, parents) to protect the health and safety of students. After the Virginia Tech shooting massacre of 2006, the New York Times and Washington Post identified numerous universities whose official policy endorsed privacy (doing nothing) over protection (doing something).

Doing nothing, it turns out, can be more dangerous.

George Washington University settled out of court a lawsuit filed by the family of student who was admitted to the campus hospital after expressing depression and feelings of suicidality following the suicide of fellow student. Shortly afterward, the dean of students sent a notice to the hospital advising the student to clear out his dorm room and leave the campus.

GWU, it turns out, is not alone in this reasoning: Contacting the student’s parents or offering other assistance was not permitted under FERPA. Put another way, GWU may have been the first major American university to advance the notion that invading a student’s privacy poses greater risks than letting him die. Greater risk to the university, that is.

Other examples:

— A newspaper in Ohio was told it could not have the passenger list for the charter flight that carried a college football team to and from a road game, because the names of students were confidential under FERPA.

— A student paper in Wisconsin was told that audit reports questioning the university’s use of state travel money were confidential FERPA records because some of the people taking state-funded trips were leaders of student groups. Upon further pursuing the matter, the paper was then told that the minutes of a university policy board and the tape recordings of the board meetings also would have to be withheld or redacted under FERPA, because the minutes and audio recordings contained remarks by student board members.

— According to the Student Press Law Center, countless high school administrators continue to believe that FERPA prevents publishing the last names of students whose pictures appear in online news publications. If the sports page appears online, LoMonte says, the photo caption must say only that, “Calvin threw the winning touchdown pass to Johnny.”

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David Chartrand writes humor and commentary from his home in Olathe, Kansas. You can reach him at [email protected]. He is a member of SPJ’s national Freedom of Information Committee.

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