In a recent email on the JEA Listserv, Mark Goodman gave a nice, succinct explanation of FERPA and how it relates to the student media, summarizing content from the SPLC. FERPA is a blockade many staffs run into as administrators use it to say everything from photos can’t run online to student names can’t be used. Mark allowed us to reproduce his message here.
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From Mark’s email dated 11/6/10
SPLC is the go-to resource on this issue, and here’s a brief summary of what is described in more detail with case citations in the book Law of the Student Press (which every student publication should have a copy of, available from JEA Bookstore.
FERPA only prohibits schools and school employees from disclosing student education records without consent.
In order to subject the student media to FERPA, the student media would have to be considered within its definition of “educational agency or institution,” which the Act defines as “any public or private agency or institution which is the recipient of federal funds under any applicable program.” To categorize them as such, a court would first need to rule that student journalists are employees or agents of their school, a classification so far rejected by every court asked to consider the question. As one federal court said, “Congress could not have constitutionally prohibited comment on, or discussion of, facts about a student which were learned independently of his school records.”
The U.S. Department of Education is responsible for investigating FERPA claims, enforcing the Act when a violation occurs and issuing regulations regarding its enforcement. The Department has said that it does not consider student media subject to the law. “FERPA was not intended to apply to campus newspapers or records maintained by campus newspapers. Rather, FERPA applies to ‘education records’ maintained by an educational agency or institution, or by a person acting for such agency or institution.” Most importantly, the Department of Education has never enforced a FERPA claim against a school for something published in the student media.
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Mark Goodman is a Professor and Knight Chair in Scholastic Journalism at the Center for Scholastic Journalism at Kent State University.