Tuesday, March 15, 2011

New FERPA ruling only the first step toward releasing students' "private" information

Hey, applicants to public universities: wondering if your private academic records are actually private?

A ruling from a federal judge has put restrictions on the Family Educational Rights and Privacy Act (FERPA) in the case of the U of I vs. the Chicago Tribune. They say the act, which has been used to limit the kinds of records released under the Freedom of Information Act, does not prevent the school from handing over names and educational records (including ACT scores and GPAs) of its applicants. 

Here's the context: the Tribune FOIAed a list of politically connected students in 2009 as part of its "Clout Goes to College" series. They were searching for the applicants on a "Category I" list, but the University was only willing to supply some basic information about the applicants, including what schools they attended, the actual number of applicants, etc. To avoid releasing the rest of the information, the University relied on stipulations found in FERPA saying that if you're an institution receiving federal aid, there are certain kinds of educational records (such as these) that you just can't release. 

"no funds shall be made available under any applicable program to any educational agency or institution which has a policy or practice of permitting the release of education records (or personally identifiable information contained therein ...) of students without the written consent of their parents to any individual, agency, or organization ..." 
This was meant to directly support a stipulation found in Illinois FOIA law that says you can withhold certain information based on the following:
"information specifically prohibited from disclosure by federal or state law or rules and regulations implementing federal or state law."
(Just as an FYI, that's the very first exemption listed in the FOIA act.)

Seems pretty simple at first, right? This federal law says the U of I doesn't have to release the information if they want to keep their funding. The FOIA law in Illinois seemingly permits such an exception. But not so fast. 

The U.S. District Court judge responsible for the ruling, Joan Gottschall, said the U of I has the option of rejecting federal education money and the FERPA conditions, so in fact, the law doesn't prevent the U of I from doing anything, meaning that the U of I isn't barred from handing it over ... it just could give up federal funding by doing so.

How interesting a way to look at the issue. With this ruling, Gottschall admits that it was a narrow one — the court looked only at whether the U of I would be prohibited from releasing the information due to FERPA. My immediate concerns though stem from the fact that the court said they aren't prohibited because they can just give up their federal funding ... but for what public institution is it practical to give up federal funding to comply with FOIA laws? That would comprise a hefty chunk of financial aid for incoming students.

But it's still such a weird case because there are still a myriad of other issues at hand that need to be answered. Is this information really public? Is it in the public interest? Are there any other exceptions in Illinois FOIA law that would prevent this information from becoming public?

From what I've read, the University has tried to fall back on other exemptions in Illinois' FOIA law to prevent this information from getting out there, including filing it under "files and personal information."

As of right now, I think this is definitely just the tip of the iceberg and there is a lot more to be explored here. Whether the University will try to bring up other legislation and continue to try to combat releasing this information with that single exemption rule in the FOIA law, or if they'll branch out and look at other exemption possibilites,  I'm not sure. 

There are still a lot of avenues this case could take. The Tribune argued in state and federal court on a number of counts. They said these files aren't education records — they are "evidence" related to "possible misconduct." They also said that these aren't student records but potential student records. Both of those have yet to be ruled on in a court of law.

But let's pretend for a moment that the University does look to other exemptions to protect these names/GPAs/ACTs. I took a look at our notes on the Illinois FOIA law to see if there would be any answers there. What are the major exceptions?

1. Classified information - doesn't seem to apply here.
2. Trade secrets - We're not looking at trade secrets for a corporation here.
3. Clearly unwarranted invasion of privacy, such as medical/tax records - This seems to be an issue we could look at further. Are names, GPAs and ACT scores really public information? Those were what were redacted. But as we said, just including a name doesn't mean it's private.

My other immediate reaction though, and what I think would really count in favor of protecting these records, is just the fact that what do specific ACT/GPA scores linked with names have to do with public interest? Public tax dollars don't go toward a measure of a person's intelligence. It's not like I'm publicly releasing the salaries of individuals who work at a public corporation. Does just applying to a public institution make my ACT and GPA a matter of public interest? I don't see the intrinsic logic here.

I'm very torn on this issue. On the one hand, I'm all for transparency in higher education. I don't believe the Tribune would use this information to merely print a list of names, but instead to do research and perhaps compile trends (all speculation, and obvious it's a point that if the Trib can have access to this information, than anyone can). But at the same time, I'm having trouble finding a public interest for a specific person's grades and ACT scores, even if they're applying to a public university. 

The ruling here merely says "hey, this law won't keep you from releasing information." But aside from the immediate concerns that forgoing federal funding for a public university could spell financial trouble, the crux of the issue is still unanswered: are these records really supposed to be public in the first place? Or are there other exemptions they could fall under?

I'm very interested in following this case as it develops and finding out if each successive ruling will break new ground, or under what ruling — if there is a favorable ruling — the Tribune could get this information under.


FERPA: http://www2.ed.gov/policy/gen/guid/fpco/ferpa/index.html

An article from the Chronicle of Higher Education: http://chronicle.com/article/Ferpa-Does-Not-Prohibit-U-of/126672/

An article from Inside Higher Ed: http://www.insidehighered.com/news/2011/03/10/federal_judge_rejects_u_of_illinois_attempt_to_use_privacy_law_to_shield_admissions_records

The Illinois FOIA law: http://www.ilga.gov/legislation/ilcs/ilcs3.asp?ActID=85&ChapterID=2

The original Chicago Tribune article: http://www.chicagotribune.com/news/local/ct-met-college-clout-lawsuit-0310-20110309,0,515024.story

Tuesday, March 1, 2011

Your actions online — real world ramifications, and does it matter what you do?

Scared that your employer might fire you because of something that you put online? It's a fear that a lot of employees have, and one that remains largely untested. While many companies have specific policies banning employees from keeping blogs, writing about certain things or posting vitriolic comments about their coworkers, a lot of the boundaries detailing what is allowed and what isn't are still hazy. It's not just where, when and how you're publishing content online, but who you are as well.

A case that came out of Connecticut last month is shaping this rule even more after a court ruled against the American Medical Response company in the state, which fired an employee after she posted a negative remark about an employee on her Facebook page. The ruling said the company's posting policies were too broad and that the employee was protected by "protected concerted activity," or as a Tech Republic article calls it, "activity for the mutual aid and protection of employees, like discussions about wages or working conditions." (As the same article states though, the case hasn't been fully adjudicated yet.)

Legal advisers are suggesting that companies tighten up their policies and specify what is allowed and what isn't in order to avoid running into the same problem. But while that's all well and good and helps define the role of an average employee working with a fairly standard business operation, what about when we're dealing with different employees whose role in society goes well beyond that of the worker bee — like, say, teachers?

A Pennsylvanian schoolteacher has been suspended from her job because of a blogging site she kept up over a number of months that sometimes crossed the border from her personal life into her professional life.  In the instances where the teacher, Natalie Monroe, mentions her students, the language is less than kind. An Associated Press article listed several comments she made where describing her students as "disengaged, lazy whiners" who "curse, discuss drugs, talk back, argue for grades, complain about everything, fancy themselves entitled to whatever they desire, and are just generally annoying."

Before we delve into the murky issue of whether teachers' blogs are protected under free speech rights and what kind of leeway they have in that area though, it is first important to look at Monroe's side of the story as well. To her credit, out of the 84 blog posts she put up over the course of the year or so that her blog operated, only 24 referred to school happenings — and out of those, only "some of them were actually focused on it," according to a recent blog post in which Monroe defended her actions. The blog also made no specific references to the kids involved at the school or the name of the school either — as well as Monroe's location, the school's location, her colleagues or any other specific information that would have given her away outright. In fact, she went by the name of "Natalie M" on the blog, which was discovered about a year after its release by students and parents who took the matter to the school. 

Monroe's attorney presents the case as an issue of free speech; one in which Monroe should be allowed to express her opinions in any matter on a blog. The first problem that I run into though with this case is whether the school district had a specific Internet policy outlining the use of private blogs by teachers. We saw in the Connecticut case that the defendant prevailed because the language of the company's policy was too vague. And unless there is some certain stipulation in her teaching contract, I think that Monroe should be allowed to express her opinions on a private blog that she is not using on work time regardless ... but where the situation becomes hazy is whether a teacher should have the right to post on a blog under the precursor of "free speech" when that speech entails a few negative comments about her students.

The dangerous area here is how teachers should behave online and how school districts should be prepared to deal with issues like this. Online, teachers are already held to higher scrutiny than many other professionals. Teachers who post party pictures or profanity on Facebook profiles or other social media profiles readily available to the public are in extreme danger of losing out on teaching positions because of their close relationship with students and the nature of their profession to work with children. As an educator, Monroe is held to high standards, and openly berating students on a not-so-public blogging site is far from professional behavior. 

Without knowing the exact specifics of the school district's Internet policy, it's tough to say if her actions were permissible by those standards or not. Certainly by basic standards of free speech, she should be allowed to say what she wants; I don't think the comments were specific enough to qualify as defamation, since she kept so much of her posts vague. But school districts have the right to establish principles when it comes to what is allowed from their professional staffers and what's not in a professional context.