Volume 101 - Issue 2 Georgetown Law Journal

Hiding Behind Ivory Towers: Penalizing Schools That Improperly Invoke Student Privacy To Suppress Open Records Requests

The University of North Carolina’s football team was reeling from accusations of widespread ethical lapses, and Butch Davis, the once-celebrated squad’s coach, stood right at the center of the mounting controversy. For Davis, 2010 was a brutal year. The National Collegiate Athletic Association (NCAA) was investigating several members of his team; one of his star players was making national headlines for allegedly receiving improper benefits during trips to Miami and California; and sports fans were calling for Davis’s head. As accusations swirled, journalists descended onto the school’s Chapel Hill campus looking for proof of wrongdoing. They sought public records, but what they got instead was a five-letter acronym: FERPA.

The University contended that the records requested, which included parking tickets and Davis’s phone logs, were exempt from disclosure under the Family Educational Rights and Privacy Act (FERPA), which penalizes educational institutions that have a policy or practice of releasing “education records” to unauthorized third parties. Despite convincing evidence to the contrary, the University continued to press the position that the information sought constituted education records. The next year, following a suit to compel UNC to release the records, the presiding judge chastised the university and reminded its administrators that federal law does not allow them to cover their campus with “an invisible cloak.” The judge then ordered the release of the phone logs and the tickets.

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