A 28-year-old man who pleaded guilty to sexually assaulting two fellow students at California’s College of the Desert was just released on parole after more than a year in jail. His name and photo have been publicized in the local media, but the college insists it cannot say anything about the case, including whether the man was expelled. “All of our students’ privacy rights continue to be protected by FERPA,” a college official told KMIR-TV News.

Source: http://www.kmir.com/story/26399402/cod-sex-assault-suspect-sentenced-then-released-on-time-served

Ohh, when you name your school College of the Desert, the headlines just write themselves:

"A sandstorm of stupidity"

"Common sense just a mirage"

"Lawrence of Insania"

Think you can do better? Post your headline and drop an email to admin@splc.org with your address, and we’ll send you an SPLC T-shirt (while supplies last).

Let’s put the FERPA privacy statute to the side for a second, and let’s envision Jesse Timothy Lara’s next job interview, College Administrator Hallucinatory Edition:

"Well, Mr. Lara, your credentials certainly are impressive — two misdemeanor sexual batteries, one felony attempted battery, a year served in jail, registered sex offender. You have everything we’re looking for here at our company, but there’s just this one little problem. I see in this news article that you were expelled from College of the Desert. Not having looked at your transcript, I never would have known that information except for this pesky news story. I’m afraid there are just some things we can’t overlook, Mr. Lara. Good luck in your promising future career."

So right, protecting felons against the public embarrassment of being expelled clearly was what members of Congress had in mind when they enacted the Federal Educational Rapists’ Protection Act.

Oh wait, you’re saying that’s not what “FERPA” stands for?

Okay then, let’s start over.

There are two possible scenarios here. Scenario One is that College of the Desert did take disciplinary action against Lara. If so, then that outcome plainly is unprotected by FERPA confidentiality, a fact that every college lawyer and administrator in America with middle-school-level reading comprehension (in other words, at least a few of them) must know by now:

Nothing in this section shall be construed to prohibit an institution of postsecondary education from disclosing the final results of any disciplinary proceeding conducted by such institution against a student who is an alleged perpetrator of any crime of violence … or a nonforcible sex offense, if the institution determines as a result of that disciplinary proceeding that the student committed a violation of the institution’s rules or policies with respect to such crime or offense.

20 U.S.C. Sec. 1232g(b)(6)(B)

Option 2 is that the College didn’t bother expelling Lara, perhaps believing it lacked jurisdiction over him once he was enrolled in a different institution (the University of Riverside County Jail — Go Perps!). So that’s plausible — maybe expelling a guy you’re sure is never coming back is overkill. But that — not “student privacy” — is what the College should (and legally could) have said: “We only discipline people if they’re enrolled, and after they leave, we can’t ‘expel’ them anymore.” That — not “student privacy” — would have been a complete, sensible and legally permissible response. 

BONUS: If there was any actual FERPA violation here, it occurred when the College put out a statement following Lara’s arrest announcing its intention to expel him. Somehow, the College has convinced itself that announcing plans to expel someone doesn’t violate privacy, but announcing the outcome does. Really, guys? If you’re going to be ignorant, at least have the redeeming virtue of consistency. 

Common sense has deserted College of the Desert. Ha, did it again!

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A school board in Iowa is discussing where to place a student who is required to register as a sex offender. But because of the Family Educational Rights and Privacy Act, the district’s superintendent will not say who the student is or where the student will be enrolled.

The Iowa City Community School District is legally required to offer education to all school-age children living within the district, including individuals who must register as sex offenders, according to the Iowa City Press-Citizen. The law, Superintendent Stephen Murley said, requires school boards to hold placement hearings to select the school that will educate the student with a sex offense. But because of FERPA, Murley said, district officials can’t disclose the student’s name, the offense the student committed and the name of the building where the student will be placed. 

Source: Iowa City Press-Citizen, ICCSD board to mull placement of student sex offender (8/21/2014).

SPLC Executive Director Frank LoMonte: This is an unenviable decision, and it’s understandably tempting for a school district to try to give a kid a shot at rehabilitation and a normal life by keeping his secret from the public. But the school’s reflexive “FERPA made me do it” response almost certainly is wrong.

Congress amended the Family Educational Rights and Privacy Act in 1999 to address this situation exactly, squarely and precisely on the nose. The Campus Sex Crimes Prevention Act specifically and unequivocally tells schools and colleges that FERPA is no impediment to disclosing identifying information about people required to register with law enforcement as sex offenders.

Why? Because the whole point of the registry is — it might be kinda important to know who and where these people are.

While it’s occasionally possible for a kid to end up on the sex offender registry for doing something that isn’t especially heinous — like pushing “send” on a naked picture of herself to a guy who’s not that great at keeping secrets — some of the folks on that list are scary-dangerous. State and federal legislators created these registration requirements for a reason: To let the public decide who they want to steer clear of. Withholding the identity and location of the person undermines the public’s ability to make that judgment.

Even the privacy office at the Department of Education, whose employees historically aren’t so good with the reading thing, has been forced to admit that the law says what it says. In a 2005 advisory letter to a Kansas school district making exactly the judgment call that Iowa City is making now, the DOE said:

The Department of Education will not take enforcement action against any school district that has a policy or practice of releasing information that a State (or any agency authorized by a State) provides to the district under the [federal registration law] on a registered sex offender enrolled in an educational institution of that district.

Saying that a school can disclose (as FERPA does) is of course different than saying a school must disclose.

Iowa law requires state law-enforcement authorities to maintain a publicly accessible registry of sex offenders. The law also renders the records of all sex offenders open to the public — expressly including the records of juveniles (Iowa Code 692A.13.7.) So if the school was hit with a public-records request for the names and locations of registered sex offenders, neither federal law nor Iowa statutes should excuse the school from giving a complete answer. 

The only reason this isn’t a four-alarm liar-liar-fire is that the Press-Citizen wasn’t told whether the student is in high school or in a lower grade. The federal FERPA exemption covers only “secondary” schools and colleges, so if the perp is a fifth-grader — and let’s not overestimate the good judgment and self-restraint of schools and police when it comes to labeling toddlers as “sex offenders” for playground horseplay — then the FERPA answer is a valid one.

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After University of Notre Dame wide receiver DaVaris Daniels was suspended amid an ongoing investigation into academic fraud allegations, his father — a former defensive end in the National Football League — expressed outrage the institution hadn’t updated him on the case.

“I really think as a whole, Notre Dame has handled this really bad man,” said Phillip Daniels, who now serves as the director of player development for an NFL team, according to NBC Sports. “I haven’t heard from the university. As a parent, I haven’t heard from the university.”

Source: NBC Sports, Phillip Daniels feels confident son DaVaris will be cleared (8/18/2014).

SPLC Executive Director Frank LoMonte: If you keep everything secret, sooner or later just by accident you’ll be right about something

FERPA was never meant to keep parents from seeing who beat up their kids on school buses or who finished first in the weekend swimming meet. Here’s something it was meant to cover: Parents snooping into the academic lives of their adult-aged kids. (Even a parent with 329 career tackles and 62 sacks.) 

The statute provides:   

For the purposes of this section, whenever a student has attained eighteen years of age, or is attending an institution of postsecondary education the permission or consent required of and the rights accorded to the parents of the student shall thereafter only be required of and accorded to the student.

 20 U.S.C. § 1232g(d). In simple English, the right of access to “education records” gets passed from parent to child when the child either turns 18 or enrolls in college. And that means the parent loses the right to obtain grades and other confidential records. 

(There’s an exception allowing colleges to release FERPA records to parents if the student is “dependent,” as defined in the IRS code. But being a dependent requires living at home with a parent for at least six months of the year; Daniels’ family doesn’t live in South Bend, Ind., so he wouldn’t qualify.) 

It’s possible that Daniels signed a FERPA waiver that enables Notre Dame to talk to his parents; many colleges require a broad privacy waiver in exchange for taking part in intercollegiate athletics. But even then, a college can discuss the student’s private academic matters but isn’t obligated to. 

Not that Notre Dame can’t say anything — if the case is about misconduct by employees and not students, then (as a Florida court told us in 2009) records pertaining to that employee dishonesty aren’t protected by FERPA. But Notre Dame legitimately can’t talk to an athlete’s parent about the student’s grades or academic status without written consent. 

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The student body president and student government assembly at the University of Texas at Austin is responsible for filling a number of internal and external positions. In the spring, a student filed a petition to the school’s Judicial Court after student government’s interview notes with each applicant were not released, as is required under the group’s internal rules, The Horn reported.

The Judicial Court ordered student government to release the interview notes, but they have yet to do so. UT-Austin’s student speaker, Braydon Jones, told The Horn that on the advice of the university’s legal department, the group was not releasing the interview notes. Doing so would violate FERPA, the Family Educational Rights and Privacy Act, he said.

Source: The Horn, Jones: SG Exec will not release interview notes for applicants (8/6/2014).

Executive Director Frank LoMonte: Oh, this brings back such memories. 

Back in the day, they used to fill Student Government appointments at the University of Florida through a glorified beauty contest that consisted primarily of reviewing glamour shots of the candidates. (I know this because, as a reporter, I got hold of the meeting notes where a candidate in need of a Clearasil intervention got dinged for looking like a “geech monster.”)

It’s a fair bet that we’ll find a few choice observations about weight, fashion, hairstyles and grooming habits when we find out what’s in the notes that UT elected officials are trying so hard to conceal. What we WON’T find is any FERPA-protected information, because notes created by Student Government representatives aren’t confidential education records. For lots of reasons.

Let’s start with the duh-obvious one: Because the Supreme Court says so. In a 2002 ruling, the Court decided that grades recorded on quiz papers by other students were not a FERPA-protected secret, because the grades were created by students (not school employees) and the quiz papers were not “maintained” in a central school database.

If grades on quizzes — which are pretty near the bullseye of “education records” — aren’t confidential, then we know an individual student’s  notes about a candidate’s qualifications for office can’t be.

Not done yet. The U.S. Department of Education’s FERPA regulations expressly exclude the following from the definition of confidential records:

Records that are kept in the sole possession of the maker, are used only as a personal memory aid, and are not accessible or revealed to any other person except a temporary substitute for the maker of the record.

Sounds like personal notes, right? Like, oh let’s say, the personal notes of a student government officer after interviewing a candidate? 

What if the interviewers did ”reveal” the notes to other people within student government? Does that mean the notes become FERPA records because they were shared?

UT better hope not. Because that’s where the violation of FERPA would have occurred: When other student government members were given access to students’ “quote-unquote confidential education records.” Except when necessary to respond to a public-safety emergency (or where a written waiver exists), FERPA doesn’t allow custodians of confidential records to selectively show them around. 

So if UT’s legal office really wants to take the position that student interview notes are FERPA records, they’re going to find it awfully hard to defend against a federal investigation when a student named in SG interview notes decides to file a complaint. (Here’s the address for filing a complaint, not that we’re necessarily saying anyone should — ooh look, there’s a toll-free number too.) 

Not done yet. FERPA regulations (34 C.F.R. Part 99.10(e) provide that, once a student invokes her right to inspect her own FERPA records, the institution must make sure that no FERPA records are destroyed. Is UT issuing directives to every member of student government to save his notes? If not — uh-oh, those better not be FERPA records that just went in the recycling bin. (Since we know this can’t be happening — students undoubtedly destroy their notes routinely — UT can’t really think those notes are FERPA-protected.)

Still not done. Remember that FERPA protects only information that’s gleaned from confidential education records. This probably shouldn’t need explaining, but information that a student voluntarily divulges to other students when seeking political advancement is not any of those things — not confidential, not educational, and not a record. 

If a student’s statement of his qualifications for office is a confidential FERPA record, that means FERPA would cover any discussion involving the merits of a student candidate: a recording of a campaign debate, a transcript of a Student Senate meeting … you see where this is going. Even if UT’s legal geniuses don’t.

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An Indiana school district’s opinion to fire its principal after he sent a picture of students to a local newspaper “was lawful, fair and supported by substantial evidence,” a federal judge ruled last week.

The principal, Rick Fears, was fired from his job as principal of Otwell Elementary School in Evansville on Sept. 3, 2013, according to the Washington Times-Herald. When Fears sued, the Pike County School Corporation argued he did not perform teacher evaluations, falsified records and violated the Federal Education Rights and Privacy Act.

In granting the school district’s motion for summary judgment, U.S. District Judge Richard Young said that Fear violated FERPA when he sent a picture of an Otwell third-grade class to the Petersburg Press-Dispatch that showed students who passed a state standardized test. Fear did not tell the newspaper the students’ test scores, the Washington Times-Herald reported.

Attorney Advocate Adam Goldstein: I don’t have an opinion as to whether the principal should be fired for his conduct—I’m merely here to examine the application of FERPA. And as far as FERPA goes, the court was correct: the principal’s conduct would be prohibited by the language of the regulations.

If the students shown in the picture sent to the newspaper were identified as having passed a standardized test, that was a disclosure made by an agent of an institution of information from an education record. That’s what FERPA prohibits, and that’s what happened. 

Technically, what FERPA prohibits is a policy or practice of these disclosures, but the institution has to prohibit such disclosures to avoid a practice or policy, and disciplining a noncompliant disclosure is a legitimate use of the statute.

That it seems to be a hysterical overreaction to a basically harmless disclosure isn’t really the point, is it? 

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Earlier this month, University of Utah’s president announced changes to the university’s fight song, Utah Man. Among the changes, “man” has been replaced with “fan.” The Salt Lake Tribune requested copies of nearly 1,300 emails sent by students, faculty and alumni regarding the changes. Citing FERPA, the Family Educational Rights and Privacy Act, the university redacted the names of students who submitted comments.

Source: The Salt Lake Tribune, More emails: The fight over the University of Utah fight song. (July 7, 2014)

Executive Director Frank LoMonte

We may not live forever on this jolly good old sphere, 
But while we do we’ll live a life of merriment and cheer.  
And when our college days are o’er and night is drawing nigh, 
With parting breath we’ll sing that song: 
A Utah Man am I!

Seriously, that’s the way the song ends. It’s about dying. And not just dying, but singing your college fight song while dying. Unless you’re actually killed at the game, who does that? (Is this how nursing homes in Utah know it’s time to gather the family? “Better come quick, Maude, he’s on the third verse.”) 

Okay, where were we? The FERPA thing. Yeah, that’s just stupid. Emails commenting on matters of public controversy on a college campus aren’t confidential education records. Anybody can send a complaint to a college, so there’s nothing “student-y” about an email. FERPA applies to documents that a college archives as part of a student’s record. If your college’s response to input on a disputed policy decision is to print a copy of the email and stick it in your permanent file, you might want to reconsider whether NSA University is really right for you. 

I guess an email about a campus dispute could be a confidential education record. If the email says, “I hope that you will give special weight to my opinion in light of my recent ‘A’ grade in Western Philosophy, as documented in my attached transcript.” 

On second thought, nah.

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Last month, a 12-year-old Beaver Ridge Central School student was arrested and charged with third-degree assault. He’s accused of stabbing a classmate in the back with a pencil, according to WNYF, the local Fox News affiliate. The school district’s superintendent told reporters she couldn’t say whether the student was disciplined because of FERPA, the Family Educational Rights and Privacy Act. 

Source: WNYF, Feedback: Beaver River student accused of stabbing another student with pencil. (June 27, 2014)

Attorney Advocate Adam Goldstein: I guess this is a legitimate use of FERPA, at least in the same way that using a baseball bat to open a jar of peanuts is a legitimate use of a baseball bat: it’s not a good idea, and it wasn’t the intended purpose when it was created, it swings the same way no matter how illegitimate the target. 

Let me back up. It used to be the case that, in all institutions, you couldn’t disclose the outcome of disciplinary hearings to the public. That changed for postsecondary institutions in 1998, when Congress amended FERPA to exempt the final outcomes of disciplinary proceedings for crimes of violence that are also violations of institutional rules.  (See 20 U.S.C. Sec. 1232g(b)(6)(B) and 34 CFR Part 99.31(a)(14).) 

So if your child tells you that someone got stabbed in the back with a pencil in his classroom, you’re entitled to know the disciplinary outcome (assuming the assailant was disciplined) if your child is a 17- or 18-year-old college freshman, but not if he or she is a 17- or 18-year-old high school senior.

Which strikes me as completely idiotic. If it is the position of the Department of Education that stabbing someone is childhood shenanigans in high school but turns into serious business in college, I think there is no evidence to support that assertion.

But that’s not the school’s fault. This is a place where the black-letter law of FERPA looks like it was written by an anti-social lunatic with a vendetta against minors.   

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A month ago, we wrote about how Boston College refused to release addresses for off-campus students, citing FERPA. They’re holding to that decision for now, but 21 other Boston-area colleges agreed to release the data at a meeting Wednesday with Mayor Martin J. Wash.

After the meeting, Boston College said its attorneys are studying the request to make sure it follows federal law, according to The Boston Globe.

The push for student addresses came after the Globe published an investigation into overcrowding and hazardous conditions in off-campus student housing, which led to at least one fatal fire that killed a 22-year-old Boston University student, Binland Lee. City ordinance permits only four unrelated people in a home, but students are living with as many as twelve people in a house to save money. Activists asked for universities to release students’ off-campus addresses to build a database to detect dangerous, overcrowded living situations, according to the Globe. Boston University was the only school to comply.

Boston College was the only school Wednesday to refuse to release data. The schools that agreed were: Association of Independent Colleges and Universities in Massachusetts, Benjamin Franklin Institute of Technology, Berklee College of Music, Boston Architectural College, Boston University, Emerson College, Emmanuel College, Fisher College, Harvard University, Massachusetts College of Art & Design, Massachusetts College of Pharmacy & Health Sciences, Massachusetts Institute of Technology, New England Conservatory, Northeastern University, Roxbury Community College, Simmons College, Suffolk University, Tufts University, University of Massachusetts Boston, Urban College of Boston and Wentworth Institute of Technology.

"Directory information," including names and mailing addresses, is not protected under FERPA unless a student specifically signs an opt-out form, SPLC Executive Director Frank LoMonte wrote last month. He pointed out that Boston College’s own privacy policy includes directory information as public information.

— Dani Kass

After The Williams Record published a woman’s account of the way the university handled a 2012 report that she had been sexually assaulted by a fellow student, students and alumni have responded by petitioning the liberal arts college to adopt new policies when it comes to investigation reports, The Boston Globe reported. Williams College has defended its actions but says it cannot comment on the case because of privacy laws. 

Source: The Boston Globe, Williams College roiled by report of rape. (May 24, 2014)

SPLC Attorney Advocate Adam Goldstein: Mmmm, no.

I mean, sure, there are lots of things the school couldn’t say under FERPA. But there’s a whole lot it can talk about that isn’t covered by FERPA, too. And since what they said was they “can’t comment,” that’s entirely wrong.

To put it another way, an administrator saying he can’t comment on this situation because of FERPA is like a guy saying he can’t eat at McDonalds because the screws on the playground hurt his teeth. You can’t hide behind the short list of things you can’t say as an excuse to sweep the things you won’t say under the rug. 

First, since the player was found responsible, the school can release the sanction and the findings of the panel that found him responsible. 

Second, anything that isn’t from a record is something the school can discuss. And third, anything that isn’t specifically about a particular student, the school can discuss.

So, for example, the school could explain why it thinks that a three semester suspension is an acceptable sanction for sexual assault. It could answer whether it has a practice of telling students not to report sexual assault to the police. It could talk about what steps it takes, in general, to protect victims. 

But, of course, Williams College doesn’t want to answer any of those questions. Because there’s no reason under the sun to tell someone not to report a violent crime, or to defend the sanction of three months of free vacation as a punishment for rape. 

And if you’re not going to explain yourself, Williams College, then shut up altogether, because nobody wants to hear you pat yourself on the back for how you handled this. 

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In a visually arresting multi-part series, the Boston Globe looks at the hazardous conditions in off-campus student housing, where cash-strapped students cram into firetraps never meant to hold eight, 10 or 12 occupants. Overcrowding has been faulted for at least one recent fatal fire and several near-misses, despite a city ordinance that limits occupancy to no more than four unrelated people per home.

A spokesman for Boston College expressed dismay when told how many students are packed into the neighborhood’s aging homes, but said BC can’t do anything about it. Even though the college has a database showing where its students are living, BC claims it can’t share that information with city code enforcers because of federal student privacy laws.  

Source: The Boston Globe, ”Shadow Campus” (May 5, 2014)

Executive Director Frank LoMonte: Let’s go ahead and assume for laughs that Boston College is correct — and (spoiler alert!) they’re not — that releasing college students’ home addresses is a violation of FERPA, which (if you get caught) carries the worst-case downside of a nasty warning letter from the U.S. Department of Education.

If you thought it would spare one of your students from a horrible fiery end, wouldn’t you maybe suck it up and take that risk?

Because, since the Department of Education has never penalized anybody for violating FERPA, would they reeeally want to start after 40 years of inaction by making an example out of the school that’s trying to save kids from burning to death?

Nonetheless, taking no chances that they might be the first college in four-going-on-five decades to get scolded (heavens!) by the DOE, the good folks at Boston College have decided to play it safe. “Safe,” except for the people who might get bitten by rats or crippled jumping from burning buildings. 

(That BC’s Jack Dunn actually answered the Globe's question with “FERPA” tells you how reflexively college spokespeople grab for “the FERPA answer” no matter what the question is. It's like the Swiss Army Knife of college spokesmanship, except that Swiss Army Knives occasionally are the right tool for the job. Let’s hope Mrs. Dunn never asks Jack if he’s glad they got married.)

In point of fact, nothing in the Family Educational Rights and Privacy Act prohibits Boston College from giving the City of Boston access to its database of student addresses so inspectors can see whether students are quadrupling-up inside houses that can’t safely hold them.

The FERPA statute says colleges can designate basic identifying facts, including name and mailing address, as “directory information.” Once something is directory information, then by definition it’s not confidential under FERPA and (except for the rare student who signs an opt-out form), can freely be disclosed. 

The college’s own privacy policy says that mailing addresses are “directory information,” as they are at basically every college in America (hence the name, “directory”). Nobody thinks your home address is a piece of confidential educational information.

Boston College might’ve had any number of legitimate responses when the Globe asked why BC doesn’t rat out its students to the city housing department. FERPA confidentiality wasn’t one of them. 

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