LCCC's Misuse of FERPA Unprecedented

The prior restraint a Wyoming judge placed on two newspapers was lifted today, which is great; but the institution that abused student privacy law to get the court order hasn't faced consequences yet.

If you need backstory: Laramie County Community College convinced a Wyoming judge to issue a prior restraint preventing two newspapers from publishing copies of a leaked report on a school-sponsored trip to Costa Rica where its president served as a chaperone for students.

LCCC's theory for why the First Amendment should be suspended? The report contains information about students, and under the Family Educational Rights and Privacy Act (FERPA), an institution that discloses student records without prior written consent could lead to a loss of federal funding for the institution.

Student Press Law Center Executive Director Frank LoMonte posted a blog entry on the SPLC's website that goes into some great legal depth about the shortcomings with LCCC's interpretation of FERPA and the history of how prior restraints are disfavored in our legal system. A brief excerpt:

The college's argument -- that the U.S. Department of Education would punish the college for not stopping the document from falling into the newspaper's hands -- is frivolous on multiple grounds. FERPA penalizes only the disclosure of confidential information by the school -- not by an unrelated third party such as a newspaper. (The law is quite clear that journalists may freely publish documents leaked by confidential sources, even if the leaker may himself be in trouble for violating his employer's rules, or even breaking the law.)

Moreover, a state court in Florida just recently addressed and rejected a comparable FERPA argument in a dispute over access to Florida State University's correspondence with the NCAA. In that case, NCAA v. The Associated Press, Florida's First District Court of Appeal ruled in October 2009 that a public university must disclose records of its internal investigation into alleged preferential treatment of student-athletes. The court rejected the NCAA and Florida State's claim that such investigative reports qualified under FERPA as "student educational records."

(Citations omitted.) As you'll find out by reading Frank's article, there are lots of legal problems with this argument. I don't want to re-hash them here: I just want to underscore another problem with LCCC's argument, one of plain-old logic.

FERPA (18 U.S.C. sec. 1232g) prohibits an institution receiving federal education funding from having a policy or practice of disclosing personally identifiable information contained in education records. With me so far?

Now, as Frank points out, there are lots of reasons to think that this report isn't subject to FERPA at all, not the least of them being that October 2009 decision from a Florida court that found the mere mention of student names in an investigation of administrative indiscretions does not convert the report into an "education record."

But let's say for the sake of argument that this record is, in fact, subject to FERPA. Let's pretend it's absolutely full of student education records. Let's assume that everyone went down to Costa Rica and they used suntan lotion to tan their grades into their backs and the report is nothing but photos and photos of student grades and social security numbers in various states of beach party.

If this report is subject to FERPA, but someone has a leaked it (which is LCCC's contention), there's no violation of FERPA, because FERPA prohibits an institutional policy or practice of disclosing this information. Having someone go outside of the rules isn't a policy, and if it happens once, it isn't a practice.

But let's say for the sake of argument that this is, in fact, an institutional policy or practice. Let's pretend that everyone at LCCC takes four weeks of intensive FERPA training which ends with, "but whatever you do, make sure you disclose every picture of students with goofy transcript-suntans, because to hell with those kids." Let's assume that LCCC's policy is to protect student information, except that "what happens in Costa Rica never stays in Costa Rica."

If the report is subject to FERPA, and the school does have a policy or practice of disclosing it... then the school has already violated FERPA. The school violated FERPA by disclosing the report to the newspapers. What the newspapers do with the report at this point is totally irrelevant as to the question of LCCC's wrongdoing. The offense is complete.

Which would mean, if LCCC's interpretation of FERPA held water, that LCCC got a judge to issue a prior restraint on the press in order to cover up what would be a violation of federal law in order to avoid having the government find out and punish LCCC.

Let that sink in. LCCC's lawyers got a judge to censor two American newspapers on the theory that the government might take away some funding if it finds out LCCC broke the law. That's like BP trying to get a prior restraint on Bobby Jindal because, hey, if he goes blabbing to the feds about this little oil snafu, Obama is going to be, like, super-pissed and not let them drill anymore.

To paraphrase the character Rory Breaker in Lock, Stock and Two Smoking Barrels, LCCC's stupidity might be its one saving grace. Because while LCCC would certainly be in a great deal of trouble if FERPA worked the way its lawyers think it does, as Frank explains in his blog entry, FERPA actually doesn't work that way.

It is not now, nor has it ever been, the federal government's position that any institution receiving federal funding can cover up investigations into administrative conduct by thinking to mention a student's name in the report. The Department of Education should state this clearly, or better still, Congress should amend FERPA to include penalties for institutions that try to misuse the privacy protections that belong to students to cover up the wrongdoing of its own employees.