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Wednesday
Apr112018

Fifty Shades of FERPA: How Universities and Athletic Programs Use FERPA as Their Personal Loophole

FERPA is the Family Educational Rights and Privacy Act. It places significant limitations on colleges’ disclosure and handling of student records. These limitations and regulations apply to all public and private colleges or any institution that receives federal funding. FERPA dives deeper when we look into collegiate athletes. The NCAA (National Collegiate Athletic Association) requires all collegiate athletes to fill out a consent form, agreeing to disclose educational records to the association that are covered by FERPA. Manipulation becomes a problem with FERPA since there are so many vague shades to it. In recent years, athletic programs and universities use the many “shades” to find a loophole or try to use FERPA to protect its reputation and cover up scandals.

In 2011, The Ohio State University Football Coach Jim Tressel received an email about his football players exchanging football jerseys, rings, and signatures for tattoos. Tressel decided to only email his mentor and keep it concealed. Once this information leaked, ESPN requested information regarding Tressel’s emails and he denied them three times. ESPN then filed a case against The Ohio State University. The court ruled siding with The Ohio State University that Tressel’s emails were deemed “educational records” and exempt from disclosure to ESPN.

In 2013, Knightnews.com filed to obtain public records from The University of Central Florida. However, when they received the records, The University of Central Florida had redacted records on fraternities’ disciplinary hearings, amongst other matters, claiming they had the right to redact the information under FERPA. Knightnews.com sued The University of Central Florida because they thought redacting this information was illegal.  In 2014, a circuit court judge agreed with The University of Central Florida that the redactions were legal. This case was used to show how state open records laws yield to FERPA. This resulted in KnightNews.com losing six out of the seven counts that were filed.

In 2016, the University of Kentucky filed a suit to appeal that the university violated the Open Records Act in the investigation of former associate professor James Harwood. The University of Kentucky provided Harwood’s settlement but failed to mention any of the accusations the Kentucky Kernel was looking for. The University of Kentucky claimed they could not release any information about the investigation because the information were “educational records” under FERPA. Before the case could reach a hearing, Harwood resigned. Hardwood’s victims will not have a chance to appeal and this case will not inform future employers if he applies elsewhere.

These cases show how some universities are using federal law to hide their scandals and as a way to save their reputations. In 2018, an article by Zach Greenberg mentions the more universities use FERPA to hide damaging information about their athletic program or about their university, the seriousness of student safety consequences increases. If these agencies think they can hide a rape case from “getting out,” this can lead to an increase in sexual assault on campuses because students then think they can get away with it. Just the same with the athletes from The Ohio State University. Since they got away with exchanging collegiate goods and memorabilia for tattoos, what is to stop other student athletes from thinking they can do something that is on par or worse? FERPA needs to be more clearly defined, as the many “shades” can provide a loophole to those interpreting it. Once FERPA is clearly defined, no longer will members of athletic programs and universities get to escape scandals unscathed. No longer do athletic programs and universities get to hide behind FERPA. We can finally end the trend of these reoccurring loophole cases involving FERPA.

This post was authored by Roberto Moya, a masters student in Higher Education Administration at The University of Texas at San Antonio. 

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Reader Comments (7)

This was a "juicy" blog! In the case with Ohio State University, I understand the FERPA rights and laws but definitely has to many options for loop holes. The email that they sued about is in my opinion not considered an "educational document" so it shouldn't be FERPA ". The document did not pertain to student grades, papers, or records so that email should be open and not be held to FERPA. I agree that if we don't stop this now it good get worse. Exchanging of athletic goods is one thing but what happens next? Is there not a law in the athletic handbook that states a policy where this is an immediate off the team decision? What else can be pushed under the rug?

April 18, 2018 | Unregistered CommenterJessica Redwine

A great example of how law can be twisted and used to benefit illegal behavior by powerful institution and groups. Washington passes hundreds and sometimes a thousand bills each year (source: https://www.govtrack.us/congress/bills/statistics), but hardly do they take the time to review the past laws they passed. It would do us all well if Congress took more time and reviewed their work including FERPA. Very informing article.

April 22, 2018 | Unregistered CommenterKyle Richey

FERPA needs to be used what it was intended for, protecting students and their educational records not for preventing scandals. It seems like institutions are getting very comfortable with throwing the term "FERPA" around and assuming that that will protect them at all times. This needs further consideration of how best to redine FERPA in order to still protect students but not provide loopholes for others who wish to take advantage of it.

April 27, 2018 | Unregistered CommenterNelly Reyes

I side with the universities in this instance. I can see how they might be utilizing some vagueness in the laws to benefit their public image but at the same time don't think it is appropriate for these stories to be public anyways. Just because is a student is an athlete and garners more public attention, then that doesn't mean that their personal situations and issues within the university should be made public. I think often the media oversteps boundaries for the sake of ratings and dramatic stories. If some of the records listed above are not considered to be educational in future cases I think there should be some sort of protection for students to hide records from people who do not have an educational or directly related professional interest, such as a background check. If the media wants to find the details to a story then they should only have access to public records such as crime reports and information that can be gathered through law enforcement, not from emails or documents held by the university.

April 27, 2018 | Unregistered CommenterCarlos A Velez

Thanks for educating me on such topic. I never knew that certain departments were miss using FERPA to better fit their circumstances. FERPA should always be used for exactly what it is designed for, nothing more or less. I feel that the federal government should revisit the FERPA guidelines and provide a more concrete and detailed understanding of FERPA do's and don'ts. Now as for the media, there should defiantly be guidelines for them requesting information as well. Student athletes should be well educated on FERPA and what it stands for before signing a consent form for the NCAA. FERPA (federal government) should provide guidelines for such agencies as well, because sometimes the information they are seeking is not in the best interest of the students. FERPA is FERPA and it is design to protect students and not air out dirty laundry or cover scandals.

May 2, 2018 | Unregistered CommenterTrenshae Gilbert

Athletics again gets a bad reputation. Many of the issues in athletics are due to the hesitation of the universities to do anything to upset the balance between academics and athletics and the financial benefits that balance brings. Athletes unfortunately get the short end of the stick. Trading memorabilia and autographs for free tattoos is such a benign offense, something arguably any kid might do when they have no money but a perfectly good bartering economy. These are young college students who likely haven't even considered the ethical implications of these acts. I'm sure this is echoed in many of the other cases as well. Just because they are athletes and to some degree "represent the university" does that give us the right to know their every infraction? I think not. Does that make hiding behind FERPA necessarily the right thing to do? Probably not, but I think its better than exposing students for minor transgressions. In the larger cases involving assault, that's more of a Cleary Act requirement. FERPA doesn't protect violent crimes or offenses. These laws and regulations should be used as they were meant to, for sure. They should not be expanded and bent to the will of the university for the sake of public appearances, but not should be hold college athletes to the same public scrutiny we do for professional athletes. If we are going to do that, the least we could do is pay them for the services they give the school. Until such a point, they should be treated as any other student with all their same rights to privacy.

May 6, 2018 | Unregistered CommenterSarah Borden

I completely agree in that FERPA needs to be better defined. I think it needs two subsection to it. One that focuses on Educational (school, class records) and one that focuses on conduct (behavioral records). I think that is where FERPA gets blurry. People are getting away with misconduct but honestly what does a tattoo received by paying with merchandise taken from ones extracurricular activity have to do with a students academics? Nothing, that does not effect the student in the classroom. I think behavioral records are a whole different type of monster that need to be handled by more than just a form. And honestly, FERPA aside by allowing these events to repeatedly happen is the school not failing in its duty to these students?

May 7, 2018 | Unregistered CommenterTarecka Payne

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