FERPA: Last Refuge of Academic Scoundrels?

Minding the
Campus readers who follow college basketball doubtless have heard about former
St. Joe’s center Todd O’Brien. For others, to recap his story: a few years ago,
the NCAA instituted a rule to allow student-athletes who graduate in four years
but have one year of athletic eligibility remaining to transfer to another
institution, provided that the new school had a graduate program not offered at
their previous school. Each year, a handful of students, mostly in football and
men’s basketball (the sports that most frequently use redshirts, and thus have
players who use all five years of their eligibility) take advantage of the
rule. This season, the highest-profile such figure, quarterback Russell Wilson,
led Wisconsin
to the Rose Bowl.

These transfers
seemed to be a matter of routine, provided the student met academic standards.
It turns out, however, that the NCAA had included an additional component in
the rule: the player’s former coach had to sign off on the transfer, even
though the student already had his or her B.A. degree. Until a few weeks ago,
there wasn’t any record of a coach denying such a request. Then O’Brien, in a first-person account
for Sports Illustrated, revealed that
St. Joe’s basketball coach Phil Martelli had not only refused to sign off on
the transfer, but had declined to give a reason for his move.

Martelli’s
behavior has generated widespread criticism, much of it also falling on the St.
Joe’s administration for not overruling him. In a blistering column
about St. Joe’s behavior, si.com’s Seth Davis discovered the following: “When I
asked if Martelli or anyone else from Saint Joseph’s could come on my show to
explain their position, I was informed by a school spokesperson that the school
was prevented from discussing O’Brien’s case because of a federal law called
FERPA, which makes it illegal for schools to release private information regarding
its students. The St. Joe’s rep even included a link to the U.S. Department of
Education’s official guidelines to this law.”

That response
wouldn’t have come as much surprise to anyone who browses through FIRE’s website. Indeed, it
too often seems that FERPA has become the last refuge of academic scoundrels.
The law–designed in the 1970s to protect student rights–has morphed into a tool
for colleges and universities to avoid outside criticism for their actions. As
St. Joe’s has done in the O’Brien case, the universities can imply that they
have reasons for their seemingly indefensible actions, but, alas, cannot
publicly reveal their motives because of federal law. And reporters, who are
(understandably) not expert in higher-ed law, are overly inclined to accept at
face value university claims.

In most cases,
universities engage in overly restrictive interpretations of FERPA because it
suits their public relations interests to do so. But not always; the lacrosse
case provides an example of a university offering a laughably lax
interpretation of FERPA. In the early stages of the case, when Duke
administrators and faculty were acting as if they were certain a crime had
occurred, the Durham Police asked Duke to hand over (FERPA-protected) keycard
information. The current civil suits against Duke have alleged that
university-retained p.r. firms were counseling Duke to distance the school from
the lacrosse players, and in this atmosphere, the university turned over the
data, even though the police lacked a subpoena. (Much later in the case, the
Durham DA’s office attempted to get court approval for the move, but was
denied.)  When Duke’s public relations
interests conflicted with FERPA, public relations prevailed.

Perhaps if
O’Brien had found a way to appeal to the race/class/gender biases of the St.
Joe’s professoriate, his FERPA problem would go away, too. But until then, his
case is another instance of a law designed to protect student rights being used
in such a way to harm the interests of a student.

KC Johnson

KC Johnson

KC Johnson is a history professor at Brooklyn College and the City University of New York Graduate Center. He is the author, along with Stuart Taylor, of The Campus Rape Frenzy: The Attack on Due Process at America's Universities.

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