Flawed FERPA ruling stifles transparency in higher education

On May 3, the North Carolina Superior Court in Wake County ratified the University of North Carolina at Chapel Hill’s (UNC’s) use of the Family Educational Rights and Privacy Act (FERPA) to block its student newspaper’s request for public records under the North Carolina’s open records law. The court’s distorted interpretation of FERPA could severely undermine the use of open records laws to create transparency in higher education.

The court’s ruling marks the latest development in the legal battle between UNC and its student newspaper, The Daily Tar Heel. In September 2016, the newspaper filed an open records request for records regarding how UNC addresses sexual misconduct on campus. UNC refused to comply with the request, citing FERPA, which prompted the newspaper to join with several local media organizations to sue UNC for violating the open records law.

FERPA is a federal statute designed to protect student privacy by prohibiting schools receiving federal funds from disclosing student educational records without their consent. The Daily Tar Heel argued that FERPA allows UNC to disclose the requested records through an exemption for certain documents related to disciplinary proceedings for sexual misconduct. Since FERPA permits disclosure of these records and state law mandates that UNC turn them over, the newspaper argued that there is no conflict between FERPA and the open records laws. Thus, according to The Daily Tar Heel’s brief, UNC is without any “legal justification or excuse for having failed to provide copies of such records as promptly as possible in compliance with the [open records] law.”

In defense of its refusal to turn over the documents, UNC argued that FERPA preempts the state open records law due to the Constitution’s Supremacy Clause. UNC asserted that FERPA mandates the privacy of student educational records and grants the discretion to disclose some of the records requested by The Daily Tar Heel — a directive that trumps state law requiring public educational institutions such as UNC to make their records available to the public.

Troublingly, the court found for UNC, holding that FERPA completely preempts the state open records law. Because “Congress has spoken in the area of student educational records” by passing FERPA, the court found that UNC had the discretion to comply with the state law in question. According to the court, this discretion regarding disclosure conflicts with the mandated disclosure of public records under state law, a “conflict” won by federal law under the Supremacy Clause. Therefore, UNC was justified in ignoring The Daily Tar Heel’s request.

This decision’s shaky logic was criticized by the Student Press Law Center, which decried the court’s Supremacy Clause argument as “novel interpretation” of FERPA. After all, the Department of Education, the federal agency tasked with interpreting and applying FERPA, has explicitly stated that “FERPA is not an open records statute or part of an open records system.” But despite the federal government definitively removing FERPA from the area of open records requests, the court still found a conflict between the two laws, ignoring the many courts holding that FERPA does not preempt state law.

This misguided decision could stifle the use of open records laws to instill accountability and transparency in higher education. Open records laws are often used to request information regarding athletic scandals, academic fraud in college admissions, and other abuses of power and taxpayer money in public educational institutions. In many of these instances, the schools invoked FERPA to block requests for newsworthy information even though the requested documents had nothing to do student privacy — a result completely at odds with FERPA’s founding purpose according to its author, Senator James Buckley. This decision will encourage public colleges to ignore records requests by their student newspapers, depriving the public of the sunlight-inducing effect of open records laws.

Fortunately, the Superior Court may not have the last word on the matter, as The Daily Tar Heel plans to appeal. We will be sure to keep our readers apprised of the latest developments in this ongoing lawsuit.