FERPA only protects students who have not been wrongly accused

Family Educational Rights and Privacy Act: Another “Nail In The Coffin” For The Wrongly Accused
By: Kimberly C. Lau, Esq.

Amidst the litany of Title IX actions being brought against colleges across the nation by students who have been wrongly accused and found guilty of allegations of sexual misconduct, there is, yet, another significant thought to consider: what becomes of your record once the damage has been done? Enter: Family Educational Rights and Privacy Act (FERPA).

Family Educational Rights and Privacy Act (FERPA), codified at 20 U.S.C. § 1232g; 34 CFR Part 99, is a Federal law administered by the Family Policy Compliance Office of the U.S. Department of Education (Department). Most colleges and universities receive federal funding from the Department, and, as a result, are subject to FERPA. Under FERPA, no individual may access a student’s “education records”, i.e. information directly related to a student and which are maintained by an educational agency or institution, unless the student provides his/her prior written consent. In short, FERPA was enacted to protect the privacy interest of parents and students in education records maintained by educational agencies and institutions. Colleges and universities risk losing Federal funding if they are found in violation of the statute. However, there are exceptions to this “persona non grata” policy. As the saying goes, “the devil is in the details,” and it is in those little “exceptions” to FERPA that a male student who has been wrongly accused will find himself perpetually helpless.

Under the following exceptions, access to a student’s education record is allowed without the student’s prior consent:

1. Federal and state educational authorities for audit or evaluation of Federal or State supported education programs. (But what does this really mean and in what instances would this be implicated? What constitutes a “federal or state supported education program”?)
2. In connection with financial aid for which the student has applied or received. (So unless I plan to fund the balance of my education on my own, my education records are at risk of being disclosed?)
3. Organizations conducting studies for or on behalf of the school making the disclosure for the purposes of administering predictive tests, administering student aid programs, or improving instruction. (Great, my education records are now potential material for glorified “market studies”?)
4. Compliance with a judicial order or a lawfully issued subpoena. (Okay, so my protection is transient at best?)
5. The victim of an alleged perpetrator of a crime of violence or a non-forcible sex offense concerning the final results of a disciplinary hearing with respect to the alleged crime. (Unbelievable, the very person who placed me into my living “hell” is now able to readily gain access to records of such false allegations and wield it to her advantage against me in any other forum?)
6. If the student who is the alleged perpetrator is found to have violated the school’s rules or policies, any third party may obtain the final results of a disciplinary proceeding related to a crime of violence or non-forcible sex offense. However, under this exception, the name of the alleged victim remains undisclosed. (This basically covers the balance of everyone in the universe not already listed above. So much for my “protection”.)

So how do these exceptions impact the wrongly accused student? For starters, your education record, including the unfavorable results of your disciplinary hearing, is not completely immune to access by a third party. It is bad enough that colleges often impose arbitrary retention policies for such student records that put your record at risk of being maintained longer than necessary at the college’s whim. What’s worse is that these unfavorable records are the result of biased investigations by untrained administrators navigating through a flawed disciplinary process that, more often than not, begins with a presumption of guilt from the outset, and ends with a panel of equally untrained administrators utilizing the lowest evidentiary standard possible, namely, preponderance of the evidence.

If you plan on transferring to another educational institution or applying to graduate school, your education record continues to present a significant impediment to your success. You see, aside from the exceptions to FERPA, a student can provide his consent to allow access to his educational record, or be required to provide his consent during the college/university application process. An educational institution’s consideration of your application is generally made contingent on your execution of a FERPA release (i.e. obtaining your consent) to allow them access to the very information that you believe to be false. It will be very difficult for another educational institution, or future employer, to turn a blind eye on your now tarnished past.

In sum, FERPA only protects students who have not been wrongly accused, i.e. students who have been lucky enough to escape being the target of false allegations. For the unlucky students who have been targeted and who have fallen victim to the Federal mandate behind the Dear Colleague Letter (see “The Ironic Results of the ‘Dear Colleague Letter’ on the Observance of Title IX on College Campuses”, by Kimberly C. Lau, Esq.), FERPA proves to be another “nail in the coffin” to their sealed fate of being branded for life as “guilty before proven innocent”. For the male student trying to scrape his way back into normalcy, he comes across the sobering fact that without the college
reversing itself (and even if it does reverse itself), he will never truly get away from his checkered past. His future will forever be corrupted.

Why should colleges be allowed to wield such power? Too much discretion left in the hands of those who are untrained is a recipe for disaster. The results so far are disastrous.

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