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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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.

FERPA; Students

New Website Launched by the Privacy Technical Assistance Center (June 16, 2017)

New Student Privacy Website was launched by the Privacy Technical Assistance Center (PTAC) and the Office of the Chief Privacy Officer (OCPO). The website will serve as a centralized resource for providing best practices and technical assistance with the Family and Educational Privacy Act (FERPA) and other topics related to student privacy. It replaces the legacy PTAC and the Family Policy Compliance Office (FPCO) websites, and reflects the reorganization of the offices at OCPO into the Student Privacy Protection and Assistance Division (SPPAD). 

FERPA; Students

E.D. ex rel. T.D. v. Colonial School District (E.D. Pa. Mar. 31, 2017)

Memorandum denying Plaintiffs’ Motion for Summary Judgment and granting Defendant’s Motion for Summary Judgment. Plaintiffs T.D. and C.D., individually and on behalf of their daughter E.D., filed suit alleging that the Colonial School District denied E.D. a free appropriate public education (FAPE) to accommodate her learning disabilities. As part of their claim, Plaintiffs alleged that the District violated the Family Educational Rights and Privacy Act (FERPA) by refusing to turn over education records corresponding to E.D., including a draft report of a school psychologist’s evaluation and emails between school administrators discussing plans to hold the child back from second grade. The court found that the requested records did not qualify as “education records” under FERPA. The draft report was not maintained by the District “in any meaningful way,” was “obvious[ly] . . . not intended for dissemination or publication, was clearly in a transitional stage, and [bore] neither real probative value nor any hallmarks of credibility.”  The emails were “casual discussions” of a “fleeting nature” and were not kept as part of a record filing system with an intention that they be maintained. Therefore, because the requested records did not constitute education records to which Plaintiffs are guaranteed a right of access, the court found there was no violation of their procedural rights.

FERPA; Students

Yu v. Idaho State University (D. Idaho Mar. 27, 2017)

Decision and Order granting plaintiff’s Motion to Compel Production of Student Records. Plaintiff, a citizen of China and former graduate student at Idaho State University, was dismissed from the doctoral program. Believing that his dismissal was based on his national origin and that he was denied procedural due process when dismissed, he filed suit against the University for alleged violations of Title VI and the Due Process Clause of the Fourteenth Amendment. Plaintiff then moved to compel the University to release the complete student records of all students pursuing doctorate degrees in Clinical Psychology between 2008 and 2015. The Court found that the requested records were relevant to Plaintiff’s claim and that Plaintiff’s need for the records “sufficiently outweigh[ed]” the privacy interest of the students, given that alternative means existed to protect the identities of those students.

FERPA; Students

Hall v. McRaven (Tex. Jan. 27, 2017)

A regent for The University of Texas System sued the System's chancellor for refusing to grant the regent complete, unredacted access to records containing student-admissions information. The regent asserted that he had both a right and a legal duty as a regent to review the unredacted admissions records and that, because the chancellor was exceeding the bounds of his legal authority in withholding the requested information, the lower court had jurisdiction under the ultra vires exception to sovereign immunity to adjudicate the matter on the merits. The trial court held that the chancellor’s conduct was not ultra vires and that sovereign immunity required dismissal, and the appeals court affirmed. The Texas Supreme Court agreed, holding that because the University System’s governance structure gives the chancellor “discretionary legal determination,” the chancellor did not exceed his authority in denying the regent complete access to the records.

FERPA; Students; Sexual Misconduct – Employment; Internal Investigations; Investigations; Sexual Misconduct & Other Campus Violence

University of Kentucky v. Kernal Press, Inc. (Ky. Cir. Ct. Jan. 23, 2017)

The Kentucky Kernal, the student newspaper at the University of Kentucky, filed a request for information pursuant to the Kentucky Open Records Act in which the newspaper requested copies of university records relevant to a sexual misconduct investigation.  The University declined to turn over records that contained personally identifiable student information pursuant to the Family Educational Rights and Privacy Act (FERPA). Subsequently, the state Attorney General ordered the University to release the requested documents. The Court reversed the Attorney General’s ruling, holding that the investigation documents at issue constituted protected education records under FERPA, since they related to student witnesses, and that the documents could not be reasonably redacted to protect the privacy rights of the students involved.

FERPA; Students

Guidance on Integrated Data Systems and Student Privacy (Jan. 2017)

Guidance published by the U.S. Department of Education Privacy Technical Assistance Center (PTAC) on how student information that is protected by the Family Educational Rights and Privacy Act (FERPA) may be used in connection with integrated data systems (IDSs) to inform program and policy decisions. The Guidance document includes background information on IDSs and explains how higher education governing boards can participate in them without compromising student privacy or violating FERPA.