USF is one of 27 Florida colleges and universities filing an amicus brief to ask state courts to re-evaluate their stance on Family Education Rights and Privacy Acts (FERPA) and keep all student records shielded from public eye, according to a press release issued by the Student Press Law Center (SPLC) on Tuesday.
The brief was issued following the court’s decision in favor of a former Santa Fe College professor who was denied access to an email he requested to see between a former student of his and a supervisor in relation to his conduct. The college denied him access to it, citing FERPA, a policy by the U.S. Department of Education to keep student records confidential. The Court sided with the professor, stating that the email was only tangentially related to student records.
But the brief filed by the universities expresses concern about the fuzzier definition of confidentiality.
“In the area of student privacy, confusion and subjectivity are fraught with danger for institutions and students alike,” it reads. “If the institution errs on the side of nondisclosure, it subjects itself to public-records litigation and liability for attorney’s fees. If it errs on the side of disclosure, it exposes itself to federal administrative complaints and even the possible deprivation of federal funding.”
Adam Goldstein, attorney advocate for SPLC, said while the Department of Education’s policy would hold that the email should be confidential, the department should not dictate state policy.
“It’s interesting, because I think the appellate courts were correct in that emails of this type were not what FERPA intended to protect,” he said. “On the other hand, the schools are also correct in that the Department of Education’s current position is that anything that a student has ever touched or might ever touch is probably covered by FERPA. However, ultimately the states are the ones that determine what is covered by their open records law.”
Goldstein said across the country, cases have sprung up about defining what student records are.
In Illinois, records were held from an investigation on whether students were receiving scholarships based on political connections. In North Carolina, records were held from an investigation about NCAA violations.
“This is one case in that trend,” he said. “I guess I would also say, ‘Poor babies,’ to the schools. ‘Oh, it’s so hard to be the government. If you keep this ruling, then we’re going to have to actually have to think and determine whether something is a student record or not.’ Well, boo hoo. I would suggest if they find it inconvenient to be the government, they should quit their jobs and work somewhere else … I’m unsympathetic to that. I think they should be doing that.”
Goldstein said while the SPLC protects the right of individuals’ privacy, the inherent issues that belie the case aren’t related to them.
“Yes, we think student records should be protected, but we don’t think everything you ever touch is a student record,” he said. “If you get a scholarship in violation of NCAA rules or you get a scholarship because of political influence or you shoot a bunch of people and we want to know how much a college knows about your mental state, these are not really records about you.”
USF General Counsel was unavailable for comment before the time of print.
– Reporting by Divya Kumar