Tattoos, Tickets, and Other Tawdry Behavior: How Universities Use Federal Law to Hide their Scandals
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This Article seeks to expose the inappropriate, if not improper, inversion of FERPA by universities falsely in the name of "student privacy." As will be seen, universities do not hesitate to embrace student-athletes' FERPA waivers when the news is good: Academic All-Americans should have their grades trumpeted to the mountaintops, or at least on ESPN. Bad boys and girls, however, particularly those whose behavior initiates NCAA investigations or criminal charges, are routinely and aggressively shielded by the university. This Article will demonstrate that the use of "student privacy" and FERPA defenses by universities are not genuinely invoked for student well-being, but, rather, are interposed to prevent further bad press for the institution. Part I of this Article presents a short history of FERPA, including a clear explication of the legislation's purpose and history: to keep "the lid of secrecy off our schools." Part II focuses on case studies at the University of Maryland, Florida State University, the University of North Carolina and the Ohio State University. This Part presents recent case decisions underscoring the fact that current university practice in protecting negative student information under the purported guise of "student privacy" does not, and should not, survive legal scrutiny. Finally, Part III is a call to Congress to hear the cries of former Senator Buckley, FERPA's main architect, and amend this much perverted legislation. It may be hard to believe that information relating to tattoos and parking tickets are protected "education records" under FERPA. For those objectively evaluating FERPA, such an inversion of the law is as troubling as the student misbehavior mandating resort to FERPA. The main distinction between the former and the latter is that universities know better. The schools' inverted resort to FERPA is not truly to advance "student privacy," but rather a convenient defense to salvage the school's own reputation. Athletics are simply too profitable to provide open records access, and, sadly, FERPA is being used to protect athletic departments more than the athletes themselves. This Article hopes to help change this approach.
