Free speech on public college campuses

FOI on campus
By Dave Roland
Contributing writer

With some exceptions, federal and state freedom-of-information acts or “sunshine laws” require records of public agencies and institutions to be made available to the public or press upon request, and that their meetings be open to public attendance. In the past 30 years, however, federal laws and regulations have restricted news-media access to certain government-controlled records, including some at public colleges and universities.

In 1974 Congress passed the Family Educational Rights and Privacy Act (FERPA), otherwise known as the Buckley Amendment. The original goal of the act was to reserve the right of access to students’ educational information to themselves or their parents, ensuring that the records would be kept private unless they or their parents gave permission to reveal them. FERPA also gave parents the opportunity to challenge questionable elements in the records.

In the decades since FERPA was passed, it has been amended to allow (upon proper request) disclosure of the results of disciplinary proceedings where a student has committed certain violent or sex-related offenses, as well as to allow disclosure of drug and alcohol problems to students’ parents under some circumstances.

The most recent amendments — the Campus Sex Crimes Prevention Act, effective Oct. 28, 2002 — require states to share with colleges information about registered sex offenders on their campuses — information that may, in turn, be made available to the public without violating FERPA.

Courts have followed Congress’ apparent intent that “record” be defined broadly as information maintained by the school and “directly related” to a student, regardless of the origin of the information or how it is kept.

Five kinds of documents that otherwise meet the broad definition of “records” are not protected from disclosure by FERPA restrictions — though that doesn’t necessarily mean they are open to the public:

These records are completely out of the control of students and parents. “Entitled” third parties, such as law enforcement agencies under some circumstances, may gain access to these types of records without parental permission; parents and students have no specifically enumerated right to see such records for themselves. Nor does FERPA give the students or parents the right to prohibit their distribution to appropriate agencies.

The most hotly contested campus records are those dealing with disciplinary proceedings. In some cases, students subjected to such proceedings are accused of acts that not only violate school rules, but are also crimes. The First Amendment freedom of the press has long been interpreted by the U.S. Supreme Court to include the right of members of the news media to observe and report on criminal hearings and trials, as in Richmond Newspapers v. Virginia, and some states’ freedom-of-information acts would seem to compel public universities to disclose the results of any official meetings, including disciplinary hearings.

The courts, however, have taken a different approach, demonstrated most recently in the 6th U.S. Circuit Court of Appeals’ June 2002 decision in U.S. v. Miami University. The court reasoned that, regardless of any alleged criminal conduct that is being addressed, school disciplinary hearings differ significantly in character from criminal trials in that they “do not present matters for adjudication by a court of law.” Based on this distinction, the court refused to offer the same deference to the rights of the press where disciplinary hearings are concerned.

The 6th Circuit then turned to the two-part test established by the Supreme Court in Press-Enterprise Co. v. Superior Court, (1986) which grants a “qualified First Amendment right of access … where (1) the information sought has ‘historically been open to the press and general public’; and (2) ‘public access plays a significant positive role in the functioning of the particular process in question’.” They found that neither prong of the test was satisfied, because student disciplinary hearings have never been open to the press or public, nor would public access to such hearings serve the interests of either the universities or students involved.

Additionally, the 6th Circuit noted that existing statutes provide a significant level of access to information of interest to the news media. General information (sometimes called “directory information”) is regularly available, and statistics concerning crime and convicted criminals on campus are available under the Student Right-to-Know and Campus Security Act. If a state’s freedom-of-information act is interpreted as demanding them, disciplinary records may also be available, though any personally identifying information must be deleted before they are distributed to members of the press or public.