By Ada Meloy
The principle of open governance in the United States always demands a careful balance with other policy concerns. But at public universities and colleges, a recent spate of state Freedom of Information Act (FOIA) requests has threatened to upset that delicate balance. Each year, public institutions field hundreds of FOIA requests. Some of these are inconsistent with important public policy concerns; others may conflict with federal laws.
Following recent labor controversies in Wisconsin and Michigan, conservative groups pursued state FOIA requests to gain access to faculty emails at several state universities. For institutions facing these kinds of requests, there is reason to respond with great care. If, after any politically charged event, colleges and universities are forced to turn over correspondence of their faculty and staff, faculty who discuss unpopular viewpoints may be subject to reprisals. This would have a chilling effect on academic freedom, and could undermine universities’ educational missions.
Refusal to release university email correspondence on the grounds of "academic freedom concerns," remains untested in the courts. However, there are instances where federal law does clearly prohibit the release of information. In the context of colleges and universities, some student information must be kept private. In fact, in the modern information age, privacy is a hot-button issue in many fields, from credit reporting to medical care to education. To address growing concern for the protection of private information, numerous federal laws have been enacted, including the Family Educational Rights and Privacy Act (FERPA). This law forbids schools that receive federal funds from disclosing student information without the student’s consent (with few exceptions). Since FERPA’s enactment in 1974, college students have come to rely upon this guarantee of privacy. To make their college dreams a reality, those same students have also come to rely upon federal funding.
A recent federal court decision threatens to take away both.
In 2009, The Chicago Tribune requested through Illinois’s FOIA that the University of Illinois disclose names and addresses of the parents of some university students. Such disclosure, however, would require the university to violate FERPA and, by extension, risk losing all of its federal funding. In the litigation that followed,1 a federal court determined, in essence, that colleges and universities are free to avoid following FERPA’s privacy protection measures simply by declining federal money—or risk being held in contempt of court for refusing to turn over the student information.
The case was appealed to the Seventh Circuit, which has not yet ruled.
Disclosure Dichotomies: What Happens When State FOIAs Trump Academic Freedom and FERPA?
State FOIA laws generally only apply to public institutions.
Eventually, this situation could create inequity between private and public schools. If academic freedom is undermined by FOIA requests such as those in Wisconsin and Michigan, faculty will find their internal emails protected only at private schools. If FERPA is eviscerated through cases like Chicago Tribune, students’ private information will only be protected at private colleges and universities. When public institutions are forced to disclose private information, they will alienate students and faculty, and may also risk losing federal funding. A total loss of federal money would devastate public institutions, and would likely also preclude many people from obtaining a college education. This result is contrary to public policy and works against President Obama’s stated goal that, by 2020, the United States achieve the highest proportion of college graduates in the world.
State FOIA laws differ.
Each state has its own version of FOIA, also known as a “sunshine” or open-records law. Even small differences in a law’s wording can determine whether universities are considered exempt from disclosing certain information. Thus, the interpretation of one state’s FOIA has little value in determining the likely interpretation of another state’s FOIA. If state courts are tasked with interpreting these laws and reconciling them with federal laws like FERPA (as the Seventh Circuit suggested may be appropriate), even states with identically worded FOIAs could ultimately reach different conclusions. In turn, these state-to-state variations could lead to a great deal of uncertainty, with public institutions getting clear guidance only after they’ve been sued under a state FOIA request. In addition, disparate judgments from state courts could affect the relative security of student and faculty privacy in public universities across the country.
Conclusion: An Uncertain Future for Student Privacy
Continued attacks on academic freedom and FERPA rights put public institutions across the country in a challenging situation. While the U.S. Department of Education has not yet ceased funding any school forced to disclose private information under state FOIA laws, the threat remains. Certainly, a favorable Seventh Circuit decision would set a promising precedent for protecting student privacy, but it would not entirely settle the issue. At the federal or state level—or perhaps at both—vigorous advocacy may be necessary to protect the free exchange of ideas on campus, safeguard student privacy, and keep public colleges and universities open and available to the public they serve.
1 Chicago Tribune Company v. University of Illinois Board of Trustees, 2011 U.S. Dist. LEXIS 33440 (N.D. Il. 2011).
Ada Meloy is general counsel for the American Council on Education.