New Cases and Developments

NACUA's Legal Resources staff summarizes current higher education cases and developments and provides the full text of selected cases to members. New cases and developments are archived here for up to 12 months.  Cases provided by Fastcase, Inc.

Selected Topics: Students FERPA
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Title IX; FERPA; Sexual Misconduct & Other Campus Violence; Students; Freedom of Information & Public Record Laws; Practice of Higher Education Law

DTH Media Corp. v. Folt (N.C. App. April 17, 2018)

Order affirming-in-part and reversing-in-part the district court’s opinion.  Plaintiffs, North Carolina-based news organizations, filed requests under the state Public Information Act (PIA) to obtain information from the disciplinary records of students who had violated the University of North Carolina’s (UNC) sexual assault policy.  Specifically, Plaintiffs sought the names of students found responsible for violating the policy, the date and nature of each violation, and the sanctions imposed.  Plaintiffs argued that §1232g(b)(6)(B) of the Family Educational Rights and Privacy Act (FERPA), which permits discourse of “the final results of any disciplinary proceeding . . . if the institution determines as a result of the disciplinary  that the student committed a violation of the institution’s rules or policies with respect to [crimes of violence or non-forcible sex offenses],” required disclosure; while Defendants argued that Plaintiff’s interpretation interfered with FERPA’s “implied grant of discretion” to UNC to decide whether to release student disciplinary records.  Finding no case law or legislative history supporting Defendant’s proposed interpretation of FERPA, the court concluded that the records were generally subject to disclosure, with the caveat that the dates of the offenses sought by Plaintiffs were not subject to disclosure under the plain language of the statute. The court also rejected Defendant’s contention that FERPA pre-empted the PIA. 

FERPA; Students; Collective Bargaining; Faculty & Staff

Serv. Emps. Int’l Union Local 503 v. University of Oregon (Or. App. April 4, 2018)

Opinion affirming the decision of the Employment Relations Board. Respondent, the Service Employees International Union (SEIU) Local 58, alleged that Petitioner, the University of Oregon (UO), violated state law by refusing to disclose the names of student witnesses who provided information used by UO to terminate and reprimand two of its employees. The relevant state statute required public employers to “bargain in good faith” with an exclusive employee representative by promptly providing relevant grievance information. UO argued that disclosure of the student witnesses’ identities violated the Family Educational Rights and Privacy Act (FERPA), which was consistent with advice from the Family Policy Compliance Office. However, an administrative law judge determined that the withheld information was not protected by FERPA, while the Employment Relations Board (ERB), through a separate determination based on an assumption that the withheld information was protected by FERPA, found that UO violated the state statute because it failed to consider accommodations that would have satisfied both its obligations under FERPA and SEIU’s right to the information, such as seeking each students’ consent for disclosure. The court affirmed the ERB’s decision, concluding that UO’s efforts were “too minimal to meet its obligations” under the relevant state law.

FERPA; Students; Freedom of Information & Public Record Laws; Practice of Higher Education Law

Scott v. University of Wisconsin System Board of Regents, et al. (Wis. App. March 6, 2018)

Per Curiam Opinion affirming the circuit court’s denial of Plaintiff’s Petition for Writ of Mandamus. Plaintiff, a former University of Wisconsin-Milwaukee (UWM) student, requested disclosure of public records from UWM, specifically, communications or emails containing certain keywords and numbers sent to and made by the Dean of Students. UMW produced over 2,000 pages in response, but redacted student names as required by the Family Educational Rights and Privacy Act (FERPA). Citing Wisconsin case law and concluding that UWM properly redacted the responsive records, the court held that “the presence of a student’s name in a document maintained by UMW makes the document an education record under FERPA.” Further, the court rejected Plaintiff’s argument that “maintaining” an education record required “something more active and deliberate than merely having custody of the document.” Last, the court found no abuse of discretion in the circuit court’s denial of in camera inspection since UWM provided specific reasons for non-disclosure.

FERPA; Students; Freedom of Information & Public Record Laws; Practice of Higher Education Law

West v. TESC Bd. of Trs., et al. (Wash. App. Feb. 27, 2018)

Unpublished Opinion affirming the decision of the trial court in favor of the Defendants.  Plaintiff sued Evergreen College, claiming that Evergreen improperly redacted and withheld certain records in responding to a request by the Plaintiff under the State Public Information Act (PIA).  Evergreen produced 1219 documents in response to Plaintiff’s PIA request, withholding or redacting documents protected by the attorney-client privilege and documents that contained personally identifiable information from student education records. The court concluded that Evergreen properly redacted student identification numbers, student photos, and student disciplinary correspondence in accordance with Family Educational Rights and Privacy Act (FERPA).  Because the redactions were made pursuant to federal law, the court also concluded that the information was exempted from mandated disclosure under the PIA.

FERPA; Students

Investigatory Findings Letter by the Department of Education to Agora Chapter Charter School (Nov. 2, 2017)

Investigatory Findings Letter by the Department of Education’s Family Policy Compliance Office (FPCO) to Agora Cyber Charter School (Agora) relating to the Family Educational Rights and Privacy Act (FERPA). The Department found that Agora violated FERPA when it required parents, as a condition for their children receiving educational services, to agree to the “Terms of Use” and “Privacy Policy” of its third-party vendors (K12 Inc., Sapphire, and Blackboard Inc.). The policies in question violated FERPA because  AGORA conditioned enrollment on agreement to the terms of its licensing agreements with third party providers, which required parents of eligible students to disclose personally identifiable information, and allowed the third party provider to use that information “for any purpose.”  The Department encourages the educational community to consider best practices from the Privacy Technical Assistance Center’s guidance, Protecting Student Privacy While Using Online Educational Services: Requirements and Best Practices, and its accompanying Model Terms of Service when contracting with third-party vendors. 

FERPA; Students

Family Policy Compliance Office Letter on the Family Educational Rights and Privacy Act (FERPA) (Nov. 2, 2017)

Policy Determination Letter by the Department of Education’s Family Policy Compliance Office (FPCO) in response to an inquiry on the Family Educational Rights and Privacy Act (FERPA). The inquiry relates to video footage of a hazing incident that occurred at Wattsburg Area School District . The video footage was used to discipline the students, along with written statements from student witnesses. The questions posed were: 1) assuming the video is an education record, could the District release the video to an individual parent of an involved student (or eligible student under FERPA) or must the District receive consent from the parent of each involved student (or each eligible students) prior to the release of the video? And 2) would the same apply to the written statements? Key to this analysis was the District’s indication that it could not afford the software to blur the faces of the other students in the video and the District could not show the parents (or eligible students) a distinct time period of the video in order to portray a student’s singular involvement in the hazing incident. The FPCO concluded that when a video is an educational record of multiple students, and when it would not be possible or reasonable to redact or segregate the portions of the video relating to the other students, FERPA would not prohibit the parent of an involved student (or the eligible student) from viewing the video. As to witness statements, the letter directed the School District to determine whether it could segregate or redact any of the information in the witness statements to protect student privacy without destroying its meaning.” 

FERPA; Freedom of Information & Public Record Laws; Students; Practice of Higher Education Law

Kentucky v. University of Kentucky (Ky. Cir. Ct. Aug. 10, 2017)

Declaratory Judgement overruling the Attorney General’s Motion for Summary Judgment, and granting in part but overruling in part the University of Kentucky’s (UK) Motion for Summary Judgment. The Kentucky Kernel,  UK’s student newspaper, requested records from the UK in connection to the resignation of a professor. The University refused to disclose certain documents because they contained personally identifiable student information, and releasing them would violate the Family Educational Rights and Privacy Act (FERPA). The student newspaper appealed the decision to the AG, pursuant to state public records law that permits the AG to conduct in camera reviews to substantiate the privilege asserted.  Following the University’s subsequent refusal to turn over the records to the AG, the AG found that the University failed to meet its burden of proving that the privilege attached. The University appealed to the circuit court, which held that the University was not required to disclose the documents since  FERPA preempts contradictory provisions in the State open records law, and additionally, since previous open records decisions justified the University’s position. 

FERPA; Sex Discrimination; Students; Retaliation; Race and National Origin Discrimination; Religious Discrimination; Discrimination, Accommodation, & Diversity

Brown v. William Rainey Harper College (N.D. Ill. Aug. 1, 2017)

Memorandum Opinion and Order granting in part and denying in part William Rainey Harper College’s (Harper) Motion to Dismiss. An African-American woman was enrolled in a nursing program at Harper until she was dismissed for reasons unclear based on the record. She claimed that several faculty members at the College discriminated against her based on her race and religion in deciding to expel her, and that they harassed her in the months leading up to her removal for discussing incidents of discrimination with the Office for Civil Rights. She further alleged that a College employee “leaked” her education files to other students. Plaintiff filed a pro se suit against Harper for Title VI discrimination and retaliation, sex discrimination under Title IX, First Amendment retaliation through Section 1983, and violations of the Family Educational Rights and Privacy Act (FERPA). The court found that Plaintiff’s allegations, when read broadly, were sufficient to state Title VI discrimination and First Amendment retaliation claims but failed to state a plausible claim for relief under the remaining statutes.