A law enacted in 1974 for the important purpose of protecting student privacy has been bastardized by some Kentucky universities to avoid accountability and evade their duty of candor to the public.
The Family Educational Rights and Privacy Act (FERPA) was originally intended to give parents access to their child’s educational records, as well as have some control over the disclosure of information from those records. Once a student reaches 18, schools must have the student’s permission to share their education records with others.
However, years after the law was enacted in 1974, former U.S. Senator James Buckley, the lawmaker that helped write FERPA, declared that the law had been “twisted and misused by the universities,” and called for Congress to rein in the use of the law for purposes he never intended.
As one who personally observed the erosion of the public’s right to know under the guise of protecting student privacy, I believe that the origins of FERPA’s misuse and abuse in Kentucky can be traced to a 2012 open records decision.
The 2012 FERPA decision in UK vs Kentucky Kernel
The attorney general affirmed, albeit very reluctantly, the University of Kentucky’s denial of a request by the student newspaper, the Kentucky Kernel, for records relating to the NCAA investigation of basketball recruit Nerlens Noel. The university maintained that the records were “education records” shielded from disclosure by FERPA.
As is standard practice in cases of doubt, the attorney general asked to confidentially review the disputed record under a statutory grant of authority in the open records law.
UK refused the attorney general’s request. The school based its refusal on its expansive reading of FERPA, as well as a 2006 letter to the Texas Attorney General from the US Department of Education’s Family Policy Compliance Office. In that letter, the federal office opined that a school could not, under that state’s law, share records with the Texas AG for purposes of resolving an open records dispute.
After such a refusal, the Kentucky AG would usually determine that the uncooperative agency failed to meet its statutorily assigned burden of proof, and would issue a decision in the requester’s favor.
In the 2012 case involving Nerlens Noel, one of many matters under NCAA investigation was his academic eligibility for a scholarship. Additionally, in a 2012 opinion, an Ohio court had just ruled that records relating to an NCAA investigation of student athletes were education records protected by FERPA. Weighing a doubt against an apparent certainty, the Kentucky AG affirmed UK’s position, assigning far too much weight (it appears now in retrospect) to its “professed appreciation for the value of transparency.”
Even while ruling in UK’s favor, the AG reproachfully noted that in the Ohio case the university provided the requester with 700 documents while UK provided The Kernel with none.
The fallout from the 2012 ruling
From that point, UK “took the ball and ran with it,” regularly denying records requests and refusing to honor the attorney general’s requests to confidentially review disputed records, based on its interpretation of FERPA. This includes the university’s denial of the Kentucky Kernel’s 2016 records request relating to student allegations of sexual misconduct by Professor James Harwood. In that case, however, the university’s attempt to use FERPA to evade the open records law and public accountability recently suffered a serious setback: in May the Kentucky Court of Appeals issued an opinion affirming the public’s right to redacted copies of those records. (UK has asked the court for a rehearing on the issues.)
In the meantime, the rhetoric emanating from the hallowed halls of academia continues to ratchet up, as the UK office of general counsel displays unfeigned contempt for the office of the Attorney General and his statutory role under the open records law.
And, as noted earlier, two other universities—Western Kentucky University and Kentucky State University—have followed suit, along with many other public agencies.
The attorney general intervened in the student newspapers’ cases to preserve his office’s statutory right to confidentially review disputed records in an open records appeal, and the Court of Appeals admonished UK for refusing to comply with his request.
However, as the cases proceed through the courts with no end in sight, three important questions remain:
- What will become of this important legal question if UK seeks review in the Supreme Court?
- What if the issue in the companion case at WKU is resolved against the Attorney General, as it originally was in the UK case by the Fayette Circuit Court?
- Will the next AG pursue the litigation and defend his role under the open records law with the same commitment as the current one?
For now, we are left with an endorsement by the appellate courts of the public’s right to know in the face of unfounded FERPA claims by our public universities. But a long road lies ahead for The Kernel, The College Heights Herald, and the attorney general in their efforts to repudiate “institutional stonewalling” and vindicate the open records law.
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