AUSTIN – After oral arguments Jan. 11 before the Supreme Court of Texas on whether University of Texas Chancellor Bill McRaven may conceal investigatory records from UT Regent Wallace Hall, McRaven’s attorney threw up a Hail Mary in a letter to the court.
Wallace Jefferson tried to buttress his contention that UT’s authority in the matter was “unreviewable by a court” thanks to the Family Educational Rights and Privacy Act, a bold contention that UT’s own public records lawyers would find hilarious.
“FERPA compliance is a matter of internal governance,” Jefferson wrote. “The Board’s institutional decision regarding Hall’s — or any other official’s — legitimate educational interest is a decision committed to the institution’s discretion, according to its own criteria.”
“FERPA forbids disclosure of confidential information to institutional officials based purely on hierarchy or position. … FERPA demands that this determination be fact-specific so that protection of private student information is maximized. … FERPA does not permit one disclosure to justify another, or one official to piggyback on a disclosure to his subordinate.”
This detailed description of prohibitions that don’t actually exist flies in the face of sworn testimony from the UT System’s top FERPA authority, Barbara Holthaus.
FERPA doesn’t forbid much of anything, much less create elaborate policy architecture. For one thing, the federal government simply doesn’t have the legal authority to forbid state universities from setting their own records policies.
The feds can threaten to invoke civil rights laws or to strip funding (which FERPA explicitly permits, although that threat has never been acted on), but state universities are creatures of the states. It is basic civics to recognize that the federal government has no direct authority over a state university; it simply has the financial power to coerce certain behavior.
Jefferson’s contention isn’t pure invention. You might even say he got the idea from Greg Abbott.
When the governor was attorney general, a detachment from the Department of Education sent word that their boss wanted control of public records decisions at the state’s universities.
Abbott’s reply: Come and take it. But he meant in a nice way, as in, “we’ll get out of your way and let you have it.”
In theory, if the attorney general’s office required a state university to disclose the sort of record that Congress thought should be secret, that university could find itself stripped of federal funding. So Abbott’s office decided to stop enforcing state public records law any time a school cried “FERPA.”
So the actual situation is much like Jefferson describes it – nobody tells UT what to do about “education records” it wants to keep secret – but that’s a matter of practice, not of law.
FERPA itself is quite clear that a university may legally have “a policy or practice of permitting the release of education records … of students without the written consent of their parents to any individual,” but that such a policy would jeopardize its funding.
Funding is safe so long as the person has a “legitimate educational interest” in the record, and the Department of Education offers regulatory guidance on how to define and understand that term. But this is only guidance (“guidance” being the term Holthaus uses) about how to stay in the good graces of the Department of Education; it is not direct regulatory authority over the schools themselves.
The U.S. Supreme Court is clear about the limits of FERPA’s reach, that it doesn’t create a right to privacy or confer new authority. In a case over an admissions scandal at the University of Illinois, the U.S. Court of Appeals for the Seventh Circuit understood that the issue was a matter of state law, as FERPA “does not by itself forbid any state to disclose anything.”
Still, there’s a common misperception that FERPA establishes educational privacy rights. The appeals court in this case even put that mistake right in the acronym, referring to the law as the “Family Educational Rights Privacy Act.”
One time, a Florida state appeals court made the exact mistake UT is hoping for here: it bought the argument that FERPA gives educational institutions unreviewable authority to determine who has “legitimate educational interest.”
McRaven’s entire defense rests on that idea, and Jefferson’s presentation seeks to convince the court not just that McRaven has such authority, but that he sits atop a hierarchy with mechanisms and criteria all meant to produce something like a judicial ruling. Thus spake the university, and thus it must be.
So one person who would know all about that sort of system and authority ought to be Barbara Holthaus, who is the UT System’s authority on FERPA issues. Her titles include privacy officer for system administration and system-wide privacy coordinator.
When the state Legislature was pursuing the impeachment of Wallace Hall, it took sworn testimony from several UT System officials, Holthaus among them. No witnesses were called to defend Hall, as the legislative committee wanted testimony that could be used against him – the more authoritative the better.
One of the accusations was that Hall had violated FERPA by discovering certain favor-trading emails regarding the son of a politician, who was of course named in them. That’s when university officials first came up with the idea of insisting Hall lacked a “legitimate educational interest” in records of wrongdoing.
If it was up to UT to issue a “ruling” on whether Hall had actually violated FERPA, this would have been the time and place to talk about it. Holthaus could have testified about how she had reached her decision, what criteria she had used, any appeal or review process in place, or any other telltale manifestation of formal authority in bureaucracy.
Francie Frederick, the board’s general counsel, could have done the same.
Yet from her very first statement, Holthaus made it clear that her role was to provide advice like any other legal counsel, not to make determinations.
On Nov. 12, 2013, then-Rep. Charles Perry (R–Lubbock) began by asking about her position.
Q: “You’re kind of the FERPA expert for the system? You’re the go-to?”
A: “With all due respect, I am the FERPA resource. I will call myself a resource.”
Q. “Okay. You would be the most knowledgeable regarding FERPA in the UT System? If there’s a FERPA question, you would be the person they would look to for technical expertise?”
A. “I am one of the more knowledgeable people and a person that they would look to for answers, yes, sir.”
When Perry asked if she had determined that emails Hall had gotten were covered by FERPA, Holthaus clarified that “I was consulted to give my opinion about them.”
Q. “Okay. And your opinion was, is there was potentially FERPA knowledge.”
A. “Potentially, yes, sir.”
Q. “And that was based on the educational reasoning [apparent reference to “legitimate educational purpose”] not being justified?”
A. “No, sir.”
Q. “What was it based on?”
A. “It was based on the fact that it had been inadvertently disclosed.”
Q. “Disclosed. Okay. Was there an educational purpose on that, because that’s been some subject of debate?”
A. “I’m sorry. I don’t understand.”
To be clear, here is the person most involved with UT’s FERPA procedures, and she doesn’t even understand what Perry means by determination of “educational purpose.” This is because UT’s defense is a fiction – the phrase is unimportant, and UT has no formal process surrounding it.
Perry finished his questioning by asking Holthaus for just the sort of FERPA determination that she would routinely make if UT had the authority to decide these matters for itself.
Q. “Based on the testimony you heard today, you’re in a position to state where there’s concern raised regarding privacy issues and whether processes or procedures were followed appropriately. Are you in a position to make that determination?”
A. “I’m in no position to give an opinion.”
Q. “Would that ultimately be your job? It’s been testimony today that you would ultimately be the one that would decide whether it demanded a referral to someone other than the UT System?”
A. “Well, I am not aware of requirements to provide referrals to outside regulatory authorities …”
Q. “So to summarize, to the best of your ability, do you perceive or do you believe there’s been a violation of FERPA, privacy, all of the items discussed today with respect to Wallace Hall?”
A. “I think there’s evidence to show there was an inadvertent disclosure. I personally do not have enough information to determine whether there was an intentional disclosure or not.”
Frederick, the general counsel, was familiar with the “legitimate educational interest” language, but she was able to cover the entirety of its practical implications in a single sentence.
Rep. Carol Alvarado (D–Houston) asked if Frederick could “describe the process by which FERPA information may be disclosed to a regent.”
A. “I’m not a FERPA expert, and I have to rely on the people who are. But my understanding is that the – the regent must have a legitimate educational interest to see FERPA.”
Q. “Educational interest?”
A. “A legitimate educational interest, yes. So something related – and that term is defined, I believe, as something related to the regent’s duties. But that needs to be somehow articulated.”
Frederick testified that she talked to Hall about whether or not the emails were covered. “I said, ‘I’m not sure, but I think this has the potential to be FERPA information.’ I got advice from our FERPA expert. … He was surprised that it was FERPA because there had been a previous opinion, kind of a casual opinion from the Office of General Counsel earlier, that generally summarized and said regents are entitled to see FERPA information.”
It bears repeating: “Regents are entitled to see FERPA information.”
Perry asked Frederick for other examples of regents being denied access to records because their “educational interest” wasn’t good enough, but she didn’t offer any other than the two emails that Hall was asked to return.
“If that’s a violation, what was done,” Alvarado asked Frederick.
A. “My understanding is, it’s – that only the Department of Education can decide if there’s a violation, and it takes more than just one – one incident or an isolated incident, that people make mistakes.”
She’s right, of course. The DOE would make that determination in the hypothetical event that it sought to cut off a university’s federal funding. UT’s attorneys offer advice to administrators to make sure that never happens.
With FERPA, Congress did not create some new authority for school administrators under federal law. It didn’t supplant state authority or create any new prohibitions, requirements, or enforcement mechanisms.
The principle in FERPA is simple: a member of the public shouldn’t be able to walk into the registrar’s office and demand a manila folder with somebody else’s name on it. That’s the rule, enforceable through control of the purse strings, and UT’s lawyers know it.
Contact Jon Cassidy at [email protected] or @jpcassidy000.
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