Two closely related articles involving the story behind the story that emerges when school officials impede access to nonexempt public records by improperly invoking the Family Educational Rights and Privacy Act.
The Student Press Law Center examines four cases in which universities abused FERPA to insulate themselves, rather than students, from public scrutiny.
The article includes a discussion of The Kernel Press, Inc. v. University of Kentucky. This case received national attention when the university sued the newspaper after the Kentucky Attorney General issued an open records decision determining that the university violated the law in denying The Kernel access to records relating to an identified professor's sexual harassment of his students.
UK raised the FERPA flag on the pretext of protecting the identities of the students.
But the attorney general and the appellate court rejected this claim, noting that The Kernel did not seek access to student identities, and recognizing the public's right to know the full extent of the professor's misconduct and whether the university's response â in this case, a settlement that permitted the professor to resign under highly favorable terms -- was appropriate.
Because UK took "the indefensible position that the records are exempt because it says they are and it must be believed," the case was remanded to the Fayette Circuit Court "for the university to submit a proper index compliant with this opinion or otherwise satisfy its burden of proof that each record in the Title IX investigation file is exempt." There it remains.
https://cases.justia.com/kentucky/court-of-appeals/2019-2017-ca-000394-…
The SPLC article does not address the case which has apparently stalled in the Warren Circuit Court involving Western Kentucky University's denial of The Kernel and the WKU College Heights Herald's request for records relating to faculty sexual misconduct maintained by WKU.
https://wkuherald.com/opinion/editorial-on-herald-s-th-birthday-student…
Nor does it examine a more recent but less visible case â one, no doubt, of many â in which a university, here, Kentucky State University, invoked FERPA to deny The State Journal's request for identifying information relating to a former student who was murdered at an off campus Labor Day party.
This is the second article to which the lede refers.
https://www.facebook.com/113243332041959/posts/3039146379451625?d=n&sfn…
KSU refused to provide The State Journal with information designated on its own website as directory â and therefore not shielded by FERPA -- relating to the victim, the alleged perpetrator, and the person who applied for the permit to hold the Labor Day party at a local park â all current or former students.
After receiving an adverse ruling from the Kentucky Attorney General, KSU relented and released the directory information confirming the students' past or present enrollment.
This became the story behind the story.
Finally, and not surprisingly, the SPLC article does not address the many cases in which non-media requesters are improperly denied access to school records.
A quick scan of the attorney general's open records decisions in which FERPA is invoked confirms that many, if not most, involve non-media requests, some by parents, some by "eligible students"—meaning student's who have reached the age of 18 and to which all FERPA rights pass -- some by lawyers, some by adjoining school district officials, and some by teachers.
Its interesting to note that a 2002 FERPA case that reached the United States Supreme Court, Owasso Independent School District v. Falvo, involved a parent's unsuccessful challenge to "peer grading," otherwise known as "paper swapping ," under FERPA.
https://supreme.justia.com/cases/federal/us/534/426/
There are two Kentucky FERPA cases on the books, one involving a media request for student discipline statistics and the other involving a teacher's request for the video taken in her classroom.
https://caselaw.findlaw.com/ky-court-of-appeals/1416763.html
https://caselaw.findlaw.com/ky-supreme-court/1257671.html
When The Kernel/College Heights Herald cases are finalized â which may take several more years â we will have additional "black letter" law on the scope of FERPA.
The single most important message in this SPLC, and many other articles, is that FERPA has been widely abused and overused on the pretext that schools risk penalization through withdrawal of federal funds.
But as the SPLC article confirms, "Not one school or university has ever lost federal funding for violating FERPA."
In Kentucky, the state counterpart to FERPA carries no penalties.
https://apps.legislature.ky.gov/law/statutes/statute.aspx?id=3818
Educational institutions should employ FERPA for the purposes for which it was enacted in 1974, "to strengthen the parental role by requiring schools that receive federal funding to provide parents, on request, with all information relating to their children," and not to avoid disclosure of uncomfortable truths about institutional operations. Failing this, the attorney general and the courts should review disputes involving the law with this principle in mind.
