University of Georgia Violates Anonymity of Course Evaluations to Punish Offensive Speech, Then Violates FERPA
December 4, 2007
by Adam Kissel
We are aware that in 1993, the Supreme Court of Georgia concluded that records of disciplinary proceedings of the University of Georgia were “not the type” of records FERPA was “intended to protect.” Red & Black Publishing Company v. Board of Regents, 427 S.E. 2d 257, 261 (Ga. 1993). We believe that decision is inapposite for several reasons.On its face, the records sought in that case pertained to organizations, not individual students [footnote omitted]. Moreover, the United States Supreme Court recently decided the case of Gonzaga University v. Doe, No. 01-679 (June 20, 2002). There, the disclosure at issue pertained to allegations of “sexual misconduct.” While the Court ultimately held that FERPA’s nondisclosure provisions create no rights enforceable under 42 U.S.C. § 1983, there was no dispute that records regarding student misconduct are subject to FERPA. Since disciplinary records pertain to student misconduct, the United States Supreme Court has, in effect, overturned the decision in Red & Black. Further, as noted above, Red & Black, which was decided in 1993, was overtaken by Congressional action in 1998 through the enactment of section 951 of Pub.L. No. 105-244. Finally, we note that on June 27, 2002, the United States Court of Appeals for the Sixth Circuit unanimously affirmed a lower court’s ruling that university disciplinary records are “education records” under FERPA and that disclosing such records without students’ consent constitutes a violation of FERPA. United States of America v. Miami University; Ohio State University, et al., 294 F.3d 797 (6th Cir. 2002). Although we realize that Georgia is not in the Sixth Circuit, this decision is consistent with the Supreme Court’s decision in Gonzaga and would be highly persuasive to the Federal courts in Georgia.