March 21, 2008

SUNSHINE WEEK: FERPA vs FOI

Walking on the Ledge:
FERPA FOLLIES


Margret Spellings, U.S. Secretary of Education, announces new brochures to help guide schools on disclosing student information. She made the announcement with Michael Chertoff, Homeland Security Secretary (left), and Carlos Gutierrez, Commerce Secretary (right), Oct. 31, 2008.

The battle over student information comes down to FERPA

The incident with the missing student and the e-mail assault that took place after got me thinking about FERPA, the Family Education Rights Privacy Act.

FERPA, or the Buckley Amendment, stands as one of the major points of contention between student media and college officials. Usually neither camp understands the finer points of FERPA that allows and promotes disclosing information.

Following the shootings at Virginia Tech last April, the Department of Education issued a guidance to college administrators that focuses on how to disclose information under FERPA. It supports the act's original provision that states:

An educational agency or institution may disclose personally identifiable information from an education record to appropriate parties in connection with an emergency if knowledge of the information is necessary to protect the health or safety of the student or other individuals.

In addition, campus police departments, like the one JCCC wants to establish, cannot withhold information under FERPA. According to the Student Press Law Center:
FERPA mandates that schools cannot release a student's educational record without that student's consent, but a 1992 amendment to the law clarifies that records maintained and created by a ‘law enforcement unit’ of a college or university do not fall under FERPA's restrictions.
While student journalists may now have some leverage in accessing information, they still face the misconception -- endorsed by administrators -- that they cannot publish it.

However, the College Media Advisers blog, Inside CMA, notes that FERPA disclosure restrictions do not apply to student media because they are not agents of the college.
This issues comes up at least once a year on the listserv and has come up a million times in the gazillion law sessions I’ve done at CMA conventions. The Federal Educational Rights and Privacy Act (aka-Buckley Amendment) applies to 'colleges and universities' releasing information. Certainly at public schools, the courts have made it clear that would student editors make decisions, they are not 'government actors.' Thus, for FERPA purposes information released by a student media organization is not information released by the university.
Student journalists often have trouble navigating the waters of campus journalism especially if an administrator dosen't know the law or intentionally cites a violation where none exists.

Yet, the responsibility does not rest entirely on administrators. If student journalists want to ride the rapids, they better master the essential policies, procedures and skills or else they'll find themselves up a creek without a paddle.


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