February 23, 2020

Episode 13

Any Other Law

By Sara Ganim

Runtime: 00:48:14

Below is a transcript of Episode 13: Any Other Law. We encourage you to listen to the episode. It was written to be heard, not to be read. 

Sara Ganim Narration: We’ve been told over and over again this season that FERPA is broken

Brett Sokolow: it’s very confusing.

Laura Dunn: and it was written so poorly,

Doug Fierberg: It’s too broad

Amelia Vance: And I think that is a massive part of the reason why it is still so widely misunderstood. 

Sara Ganim Narration: One attorney told us

Laura Dunn: it is one of the worst written laws of history,

Sara Ganim Narration: So why hasn’t it been fixed?

Paige Kowalski: FERPA needs to be modernized and we haven’t really modernized it.

Ryan Petty: Their eyes glaze over when you start talking about things like FERPA 

Sara Ganim Narration: From the University of Florida’s Brechner Center for Freedom of Information, I’m Sara Ganim, and this is Why Don’t We Know. If any other federal law were as broken as FERPA it would have been fixed by now. I am confident in making that statement. But FERPA has remained vague, broad and outdated for four and a half decades. 

I wanted to go to the hill to ask people about it. But when I started reporting for this episode, we were in the height of COVID. So, I went to the virtual hill. Last summer,  calling folks on the education committees to see if they would join me for this episode to talk about FERPA. Most of the responses I got back were  the email equivalent to blank stares.  In normal times, as I’m wrapping up the reporting for this episode, I  would make those calls again and see if I could get some official responses, even if they are no responses, I’d get them on the record. But I’m sitting here writing this on January 11 — five days after a domestic terror attack at the United States Capitol. So, now doesn’t feel like the right time to be making calls about the problem of FERPA.  Instead, we’re going to explore some other factors that have kept FERPA alive for so many years and then we’ll circle back to the hill. Maybe in a month — after a peaceful transition of power has happened, maybe in a few months after the chaos of the first 100 days, we’ll see. But, I promise that we will. Okay, so I sat down one day at my desk after almost 18 months of reporting on season one and I opened up a Zoom window with Why Don’t We Know Executive Producer Frank Lomonte.

Sara Ganim: Hey, can you hear me?

Frank LoMonte: I may have had it on mute.

Sara Ganim Narration: To talk about where we are and how we should wrap our heads around all of this

Frank LoMonte: Why is it, we’ve got to this point, we’ve even heard from the guy that literally wrote the law, that this is not the way it’s supposed to work this is not what’s supposed to happen 

Sara Ganim Narration: So that you can wrap your heads around it, too.

Frank LoMonte: why is it so hard to get people in schools and colleges to honor these requests for data, even knowing that nothing is going to happen to them if they do?

Sara Ganim:  It’s not one thing, which is why I kind of wonder 

Sara Ganim Narration: It’s not one thing. In trying to figure out the last “why” of Why Don’t We Know — why hasn’t this been fixed, we arrived at three answers. First, and in no particular order, let’s start at K-Street. It’s where a lot of the power lies in Washington. Any organization that wants to make sure their interests are served, employs powerful lobbyists to broker on their behalf — universities are no different. Why Don’t We Know Reporter Conner Mitchell dug into this for us. 

Conner Mitchell Narration: Collectively, the higher education lobby is a multi-million dollar industry with universities collectively spending about $61 million dollars and actually, that number has decreased over the last ten years from about $110 million. Mostly, because of the elimination of ear-marking. 

Sara Ganim Narration: Earmarking was this loophole which was closed back in 2011 — but it had allowed money for causes to be attached to legislation — even if that legislation had nothing to do with the cause. 

Conner Mitchell Narration:Right, for example, back then, it was not unusual to see funding for a road project attacked to a health care bill, but when earmarking went away,  universities realized they could no longer lobby their leaders to quickly fund a new building or quietly water down policies that could complicate university operations and so many stopped paying for lobbying.

Sara Ganim Narration: But getting back to FERPA

Conner Mitchell Narration: Getting back to FERPA, there is still a lot of money — millions of dollars spent every year,  lobbying issues in higher education. 

Sara Ganim Narration: Enough, for us to conclude that if universities wanted to lobby to change FERPA and make it more understandable, less broad, they could certainly do that.

Conner Mitchell Narration: Certainly, In fact, the decrease in lobbying mostly came from smaller and middle-sized universities that don’t have the budget to pay for a lobbyist to live in the nation’s capital and advocate on their behalf. But many, if not most, of the major universities do still have lobbyists working on their behalf.

Sara Ganim Narration: It seems to me they don’t have a motivation to fix this flaw. Back to my conversation with Executive Producer Frank LoMonte

Frank LoMonte: Right. If you think of any other law, just envision, imagine that there’s some other law where there’s a potential financial death penalty attached to it for your institution, wouldn’t you be up there trying to lobby as hard as you possibly can to get that penalty change? Wouldn’t you be up there just knocking yourself out saying, look, we can’t possibly be held to this draconian law that threatens us with defunding? Of course, you would, unless you like the law the way it is. They know, It’s maddening, really, because there’s only one category of people that are subject to the law. The only people who are actually regulated by the law are the people who like the regulation just the way it is. The people who are theoretically the most incentivized to get it changed, the people who are at risk of losing their funding are also the people who are happy to leave it confusing.

Sara Ganim: Maybe schools like this confusion?

Sara Ganim Narration:I want to highlight something attorney Laura Dunn said when we talked in episode 10 about how FERPA is used to keep sexual assault cases secret. 

Laura Dunn: I think the more I do this work, the stronger the viewpoint becomes. When it comes to FERPA, I do think it is intent, there are absolutely times where schools absolutely know what the law says and what they could do, and they intentionally choose not to. 

Sara Ganim Narration: And then what the grieving parkland parents told me when I talked to them for Episode 12

Ryan Petty:You asked about legislative desire to deal with these issues like reformation of FERPA. I can tell you, having testified to the federal commission on school safety, even the most dedicated public servants, or legislators, politicians, their eyes glaze over when you start talking about things like FERPA.

Sara Ganim Narration: Paige Kowalski, who is the Executive Vice President of the Data Quality Campaign, told me that her organization has been trying for 15 years to have conversations with lawmakers about schools hiding behind FERPA, but no one seems to care. 

Paige Kowalski: Overall there just hasn’t been a lot of motivation or political will to try to move FERPA. I think there are folks out there that are worried about if you open this law up do people have enough knowledge? Do we know what a good federal privacy law looks like? Do we know how to write that? What are we basing that on? And I think that’s part of what’s driving that lack of motivation around tackling FERPA.

Sara Ganim Narration: part of what she’s saying is that laws don’t move nearly as fast as technology moves and so when i said before that there are no real conversations on capitol hill about updating FERPA, well, I need to clarify that. There are no real conversations on capitol hill about addressing the fact that schools are weaponizing FERPA to do things like keep sexual assault survivors from seeing their own records. Or keep parents from knowing how many guns were brought to their kid’s school. What is being talked about

ABC News: Being a monopoly gate keeper for the internet. Google handles nearly 90% of what Americans are searching for on the internet.” 

Sara Ganim Narration: Is big tech.

Paige Kowalski: What is the role of tech companies? We don’t really have access to what they’re collecting about us. We don’t know what they’re collecting

Sara Ganim Narration: Paige told me 

Paige Kowalski: There’s been more of an emphasis lately around technology, as students are using apps and online services more and more and more in their education and certainly with this last year and learning in their home 

Sara Ganim Narration: And the fear about what information is being collected about students that has sucked up the entire political conversation about privacy reform. Here again is Why Don’t We Know reporter Conner Mitchell.

Conner Mitchell Narration: All of the recent legislative efforts to change or update FERPA and there’s not many of them but all of them have all been focused on adding even more provisions to the law in order to include the online activity of students from kindergarten all the way through college. There’s a group called common sense media. 

Common Sense Media: Are the thrills in the Expanse suitable for young Sci-FI fans? 

Conner Mitchell Narration: It’s a San Francisco based company that was started in 2003 by Stanford Law professor Jim Steyer as this place where parents could go to get ratings on the violence in video games.

Common Sense Media: How gory and graphic is the action in Cyberpunk 2077

Conner Mitchell Narration: And over the years it has morphed into an organization with a keen interest in protecting students’ online data. 

Common Sense Media: Parents should know that this show is far edgier than any Star Wars story

Conner Mitchell Narration: and it has also grown exponentially, the most recent data we have shows its operating revenue is 25.4 million dollars and it has some really influential people on the board, including former housing and urban development secretary julian castro, the ceo of Madison Reed and two managing directors of Goldman Sachs. Plus, the Steyer name carries a lot of weight, especially in democratic circles. 

Tom Steyer Ads: He’s brought us to the brink of nuclear war. Obstruction of justice with the FBI. Hi, I’m Tom Steyer and I’m a citizen, like you, who knows it’s up to us to do something 

Sara Ganim Narration: Jim Steyer is related to Tom Steyer, the guy who ran against Trump with a saturation of TV ads?

Conner Mitchell Narration: Yes, Tom Steyer is Jim Steyer’s brother. The family has been famous in democratic circles for years.

Paige Kowalski: Common Sense Media has definitely been on the Hill and it’s a part of student privacy conversations.How do we ensure that information can be used by schools and teachers and parents to make better decisions about their students while at the same time protecting their privacy?

Sara Ganim: I mean, you say more of the conversation is about big tech and data sharing. But I would actually say all of the conversation is about that. Like I don’t hear anyone on the Hill talking about how FERPA is broken in the sense that students who are victims of sexual assault can no longer at times get their own records or that parents whose kids were bullied can’t know the outcome of the investigation. I don’t hear anyone ever talking about that at all.

Paige Kowalski: I don’t hear folks approaching the conversation from that angle either

Sara Ganim Narration: Anyway, back to FERPA…

Sara Ganim: And then you’ve got these trainers who also could have some influence or telling everyone that confusion is just fine, that it works in your favor.

Frank LoMonte: Every time they go to a training session, they’re being told that everything that you have is covered by FERPA, and they’re not being told that public records laws exist or that there’s any offsetting interest in transparency or disclosure.

Sara Ganim Narration: If the first part of this is lack of motivation by universities to push for change and the second part of the problem is that the only real lobbying that’s happening is for more privacy because of the fear of big data. then the third part of this is the consistently bad training school employees are receiving. it’s something we’ve heard over and over again this season 

Laura Dunn: People are not well trained 

Amelia Vance: People don’t know what the law says.

Ryan Petty: They didn’t understand the rules or they didn’t understand what they should report and shouldn’t report

Sara Ganim Narration: So, I went looking for the people who are in charge of training. 

FERPA Awareness Training:  I’m going to go through, uh, hit the highlights of FERPA

Sara Ganim Narration: to see what they actually say in their FERPA sessions.

FERPA Awareness Training: All right. Can everybody hear me? Okay. Good. Glad. 

Sara Ganim Narration: We found one two and a half hour session given by one of the most prominent trainers.

FERPA Awareness Training: We’re gonna and as all of you are sure are aware. We’re going to talk about FERPA today 

Sara Ganim Narration:I clicked on it and started to listen, excited to hear what is being said on what I think is a really important and influential topic in education.

FERPA Awareness Training: Hopefully you slept well last night and you can stay awake for all of it.

Sara Ganim Narration: Stay awake for it? Great. That’s promising. 

This is Why Don’t We Know. The backbone of this entire season is the research and reporting that was done by journalism students at the University of Florida. Support their work, and our non-profit journalism here at the Brechner Center, by going to our website and making a donation. The money goes to make sure we can continue to pay students for their awesome work. You can find that donation button at www.brechner.org

Sara Ganim Narration: There are two men who are very well-known in the FERPA world, I think I can fairly say they pretty much have exclusivity over the cottage industry of training school officials about FERPA. When you read news stories questioning a university’s FERPA decisions or trying to explain them, often, you will see either or both of their names. Leroy Rooker and Steven Mcdonald

Steven McDonald: although it is quite broad and it often seems very confusing, FERPA is actually quite flexible, it’s quite nuanced.

Sara Ganim Narration: McDonald has made a career serving as legal counsel for universities, first at Ohio State and now at Rhode Island School of Design. 

Steven Mcdonald: We’re almost always able to disclose information when we need to disclose it. 

Frank LoMonte: There’s a community of university attorneys, that’s a tight knit community, they go to a lot of the same trainings and conferences together.

Sara Ganim Narration: Frank has been keeping tabs on these two guys for decades. 

Frank LoMonte: When you’re a journalist, especially, you call up that organization, you say, I need to speak to somebody who’s your authority on FERPA, they always give you the same name, they always give you Steve McDonald. He’s been the guy who conducts the trainings for other college attorneys for many years, and he’s been the person who comments on behalf of the community of college attorneys when you need somebody to authoritatively give a position on what FERPA covers

Sara Ganim: How did he become that guy? Do we know? 

Frank LoMonte: I think that when you do enough of those trainings, you become known in the field as the go to person. I don’t really know at what point he became that go-to person. He was involved back during his time as a university attorney in Ohio. He was involved with some of the formative litigation that really set the boundaries and the parameters of what FERPA covers and doesn’t cover. There was a pivotal moment in Ohio, where the state courts and the federal courts were taking different interpretations of what was covered and not covered. The state courts were telling universities that their disciplinary hearings had to be open to the public and the federal courts were telling them no, they don’t have to be. As a university attorney in Ohio, he was right in the middle of that.

Sara Ganim Narration: And what about Leroy Rooker? He came to be a go-to FERPA expert by a different route. 

Frank LoMonte: Well, LeRoy Rooker, his credentials are obvious. He was the longest serving person to be Director of the Department of Education’s Privacy Office. He has been the go to person for decades, when somebody needed an authoritative federal interpretation of what FERPA covers and doesn’t. It’s no exaggeration to say that the body of Department of Education precedent that has been built up over the years is his handiwork. His signature is all over the way that the Department of Ed interprets FERPA.

Sara Ganim Narration: And that’s how Rooker ends up teaching many university employees how to interpret FERPA.

FERPA Awareness Training: Presenting today is Leroy Rooker, who is the senior fellow at acro

Sara Ganim Narration: He’s now senior fellow with the American Association of Collegiate Registrars and Admissions Officers where he’s touted as the nation’s leading authority on FERPA. He mostly does training. Hence, why I’m watching him in this two and a half hour video. 

FERPA Awareness Training: So, at any point during the presentation, if you have questions, please ask them

Sara Ganim Narration: Yeah, I have some questions. 

FERPA Awareness Training: We’ll have some time at the end as well

Sara Ganim Narration:  A lot of them, actually.

FERPA Awareness Training: But if you have them along the way, um, do ask them and we’ll try and get them answered.

Sara Ganim Narration: But neither Leroy Rooker or Steven McDonald returned my multiple calls and emails requesting that they answer some burning questions we have about how FERPA  is interpreted. So we turned to the public domain..

Student Privacy Compass: There are three primary rights that students have

Sara Ganim Narration: To see what they’ve been saying 

Student Privacy Compass: We’re almost always able to disclose information when we need to disclose it

Sara Ganim Narration: And how it’s relevant to the discussion about whether FERPA is broken.

NPR: Those records would be relevant, and you would get them through some process,”

Sara Ganim Narration: Cue the tape

FERPA Awareness Training: FERPA does not Require that institutions maintain records. It simply says, if you maintain them, you have to protect the privacy of them and you have to give the student access to them.

Sara Ganim Narration: There are a few things he said about privacy that might give us insight into why there seems to be so much fear of a law that has no real teeth.

FERPA Awareness Training: So, it’s essentially, as I describe it, it’s a FERPA liability on the part of the institution, because you’ve got all these records. And as such, you got to protect them privacy wise. And you’ve also got to give the student access if the student wants access and once all their records, that can be a big job collecting them because they’re a lot of places 

Sara Ganim Narration: But the more telling thing about this training was what was not discussed. Never, ever was there a mention of sexual misconduct cases, where so many FERPA issues often arise. There was no mention of public records laws, and how they can often conflict with FERPA and when they do which one takes precedent? Nothing about that.

There was nothing about the public safety exemption, which schools almost never use and not one acknowledgment that this is a public agency –  a public university – where there is an interest in transparency and disclosure and oversight. Mostly, what was discussed were things related to outside vendors, financial aid, stuff like that. In fact, it was pretty dry.  As promised, I had to try really hard not to fall asleep. It gave me flashbacks to training sessions I’ve attended, I’m sure  you have too, where the presenter is so monotone and speaks in such legalese. It’s painful. For a law that is so important, and has so much impact, listening to this training session did not give me hope. 

Sara Ganim: In fact, it made me wonder if people are misunderstanding FERPA because they could not stay awake for this session. Is this too harsh of an assessment?

Frank Lomonte:  Well, I had a chance to look at the transcript of that Rooker Hawaii training, and it’s very similar to other trainings that I’ve viewed other trainings that I’ve been to as a university employee myself. There’s a couple things going on. First, nobody in university land occupies a huge segment of their brain thinking about FERPA. As a university employee, you’re getting trained in all kinds of compliance issues, and the amount of time that you spend mastering FERPA is very limited. What do you get? You get really high level, big picture takeaways. I think everybody’s high level, big picture takeaway after they go through FERPA training is, everything we have at this institution is all a secret, and you’re going to get in big trouble if you disclose it, that’s the big picture takeaway that you get. You’re right, there’s no effort in any of these trainings to balance accountability and transparency. There’s rarely an acknowledgement that we should be making an effort, as every state’s public records law says, to read the exemptions narrowly to maximize public disclosure and public access. You don’t hear that because the Department of Ed, under LeRoy Rooker, has always taken the position that colleges and schools are not supposed to think about transparency, they’re only supposed to think about privacy. You will see this in the guidance that the Department of Ed has issued over the years where they have this recurring phrase that shows up in their rule makings, it shows up in their interpretations, FERPA is not a disclosure statute. In other words, we don’t care. We don’t care about state open government law, we don’t make any attempt to reconcile FERPA with state open government law, we just interpret privacy law to maximize privacy, period.

Sara Ganim: It is strange though, because when you start googling FERPA, mostly what you find are news stories related to Title IX cases, sexual assault cases, and that’s what we found in our reporting too. Even though FERPA popped up, and we could have talked about FERPA in almost every episode; hazing, concussions, future episodes that we’ll talk about, bullying. Really, it was Title IX, where it was the best fit to really dive in, because those were, I guess, some of the more extreme cases where there was a public safety issue, there was a lot of contention over whether something should be disclosed, you have a victim who has the right to their own record was having trouble getting it. It just seems to me, FERPA is such an important part of how the Title IX office operates. How could you have a two and a half hour training and not mention it?

Frank LoMonte: Maybe the assumption is that only a handful of people who work in the Title IX office are actually going to be handling those documents, and they probably get all their own Title IX specific training. But it’s a great point, and it’s a great question, how is it that training seems to be divorced from people’s everyday lives? How is it that the training doesn’t apply itself to the actual scenarios and situations that you might encounter as a university employee? That’s how the training would be most effective, is you would walk through certain scenarios. You would say, well, look, if you’re involved in a Title IX case, here’s what you can say, here’s what you can’t say, here’s what you should disclose, here’s what you shouldn’t disclose. Those are the kind of things that would actually make the training useful and valuable, and maybe not quite so snooze inducing as what you saw.

Sara Ganim Narration: I have some real questions. Questions that only Rooker and McDonald can answer. So, I emailed them. I asked how can anyone think that it was a proper interpretation of FERPA to withhold the surveillance tape of the playground accident in Arkansas, where Brooke Moore’s son was so badly hurt? How can it be justified that schools are withholding students records when they are involved in high profile Title IX investigations? Why can’t we know the punishments in hazing cases or Title IX investigations, even with names redacted? What about the case in Oregon, where a student sued her school over a mishandling of a sexual assault case, and the university went to the counseling office and took the woman’s records from her therapist and used them as part of their defense. Nothing. No answers.  Although our team did find this NPR piece, where McDonald defended that University in Oregon’s behavior:

NPR: I would think, in almost any case anywhere in the country, in a fear and emotional distress claim, those records would be relevant, and you would get them through some process. 

Sara Ganim Narration: They also had something to say about the fact that dozens of schools around the country are refusing to release the number of COVID- 19 cases on their campuses — This is happening not just in higher ed, but also at the elementary level

Sara Ganim:Frank, they have come out and spoken about COVID-19 data and why it’s not covered by FERPA. I wonder if you think that conveniently contradicts what they say about FERPA covering the number of Title IX cases on campus as we explored in episode nine?

Frank LoMonte: What’s frustrating is that that same level of guidance doesn’t always apply when you’re talking about concussion numbers or Title IX cases or any other set of unidentifiable statistics. If COVID numbers are not individually traceable to a known student then neither are Title IX numbers individually traceable and so the guidance should be the same. The people who are now safely giving out those COVID statistics without harming anybody should take a second look at what their privacy policies have been and whether they have been too restrictive, frankly about withholding data that is in no realistic way ever going to be traced back to a named student. 

Sara Ganim Narration: it leads me to a very basic question that we have, but one that we didn’t get to ask Rooker or McDonald and that is, Is FERPA confusing? McDonald has said no. He doesn’t believe that. He believes FERPA is broad in a good way because 

FERPA Awareness Training: although it is quite broad and it often seems very confusing, FERPA is actually quite flexible, it’s quite nuanced. we’re almost always able to disclose information when we need to disclose it.

Sara Ganim Narration: Almost always able to disclose information when we need to disclose it, but that leaves the decision up to the schools. Attorney Laura Dunn addressed this when I talked to her for episode 10. 

Laura Dunn: There’s so many loopholes where there’s permission to disclose, but not a requirement to disclose. Schools, obviously, are not going to exercise their judgment in a way that adversely affects their interests, so no matter what is in the student’s interest, which should be the only governing factor, the law’s been written in so many ways to allow schools to exploit it.

Frank LoMonte: So, I think the fact that you’ve got judges all over the country rendering irreconcilably inconsistent interpretations of the same law, is evidence of confusion. If judges are confused, then how are the rest of us supposed to figure out what our compliance obligations are, or what our entitlement to documents are? An example of the confusion, object lesson and how confusing it is, is the way that surveillance videos are treated. You could go from state to state and find judges that will tell you for sure that they’re convinced that a security video shot on a school bus that shows the faces of students is a FERPA education record, and then go to the next state over, and there’s an equally certain judge who says that it’s not a FERPA education record. And so the boundaries of this law are so blurry, that it’s impossible to know where your right to access begins and ends. This is a federal law, it should mean the same thing in Ohio, as it does in Pennsylvania, as it does in Florida, but it doesn’t.

Sara Ganim Narration: Also, FERPA isn’t a set of guidelines or a suggestion. It’s a federal law and a federal law should not mean two different things at two different universities or in two different school districts. 

Frank LoMonte: Yeah, to use the Silicon Valley term, the confusion is not a bug, it’s a feature. I think that’s what university and school district attorneys like the most about it, is that it is confusing, it is uncertain, there is no way of a layperson defining what is and is not a FERPA education record, which leaves the institutions able to define it. 

Sara Ganim Narration: And because it is confusing and broad — not just flexible — we see that happen, a lot. For example, in Kentucky and California, where our data showed different kinds of records coming from different state universities regarding sexual harassment cases. 

Frank LoMonte: The problem with that is that judges are inclined to defer to the interpretation of the institution, instead of applying their own common sense and good judgment. We saw that, I think most profoundly in the Ohio State case where you’ve got records that anybody with two cents worth of walking around since knows are FERPA education records. Stuff like the football coach sending emails to a booster about his players. Everybody knows that wasn’t what Congress intended to be covered as a FERPA “education record”. Everybody knows that. But because the university applied that characterization, the judge says, look, who am I to second guess the expertise of these universities? If they say it’s an education record? That’s good enough for me.

Sara Ganim Narration: Schools shouldn’t be able to do whatever the heck they want. Because then you end up with scenarios like this one where a student in Buffalo died on a football field and the school decided it didn’t have to release the video, because of FERPA. Even though each week students play football on that very same field, and it’s recorded by parents and local news and no one complains. Even though the whole purpose of the game is for people to come and watch, they cited FERPA as a way to keep that surveillance video from getting out.

Frank LoMonte: For sure, school and college lawyers have figured out that this is a very convenient way of getting out of disclosure when it’s embarrassing or scandalous for you. I actually sat on a panel a couple of years ago with a college president from up in Connecticut, and he told me, he actually said to this roomful of people, when you say FOIA, we say FERPA. When you say FOIA, we say FERPA. Then we sorted out later if FERPA really applies or not. He was willing to acknowledge, I don’t think this was an on the record conversation, but it was a training, actually, it was a training that we were at for attorneys, and he acknowledged that they shoot first and ask questions afterward. They invoke FERPA first, and then they come back afterward, and they decide whether it really applies or not. 

Sara Ganim Narration: That’s quite the admission, but the reality is I was told many times that this idea of using FERPA as a cover, It’s a well-known thing in education circles. And when we started this episode by talking  about why things haven’t changed.  Yes, it’s the lack of university motivation. Yes, it’s the focus on big data but also, I cannot understate the influence of Leroy Rooker. 

Paige Kowalski: He was the individual when states and districts and schools had questions about FERPA, wanted clarification or an understanding of if a particular activity was permissible under FERPA. They would write a letter to him at the department and ask the question. 

Sara Ganim Narration:This is Paige Kowalski again

Paige Kowalski: and it would almost always come back as no. It’s not permissible and he at the time I would hear him advise states that they should rather than writing these letters go out and have these conversations and do what they’re trying to do and go from there. And see if people would claim a FERPA violation. 

Sara Ganim: How much of an influence do you think his interpretation has on how people apply FERPA?

Paige Kowalski:He had a very large influence. The National Center for Education Statistics used to host a conference twice a year for state and district data folks and IT leaders and LeRoy Rooker was always there to talk about FERPA and provide updates and answer questions. And I remember state data leaders would go up to the microphone and bring up an example of something they were trying to do and asked if it was permissible. And standing in front of the microphone as an official from the US Department of Education, his default answer was no. That’s kind of how the whole field started to think about data was that we can’t share it. That was the default position we can’t share.

Sara Ganim Narration: It’s rare to find a quote from either Rooker or McDonald stating that FERPA is being misused.

Sara Ganim: Can you explain to me the role that, from an outsider’s perspective, how big of an impact do you really think these two guys have on how colleges interpret, I guess from my perspective, I’m looking at, yeah, they may do a lot of trainings, but universities, and their administrators and their attorneys, still, I think, hold a lot of personal responsibility for making the decisions that they make, but how much influence over FERPA, how much influence related to the confusion and the misunderstanding of FERPA falls on these guys?

Frank LoMonte:I don’t want to oversimplify it or personalize it, because it’s true that universities all have their own internal trainers, too. They’re not all showing people LeRoy Rooker videos or Steve McDonald videos, so there’s plenty of blame to go around for the confusion. But McDonald and Rooker are sort of the two public faces of the higher ed, legal community. If the two public faces of the higher ed legal community were to actually come out and say what we all know is true, which is this law is broken, it’s dysfunctional, it doesn’t do anything that it was intended to do, and it does a lot of bad stuff that it was never intended to do. If they were to just come out and own up to that and say it publicly, Congress would change it tomorrow.

Sara Ganim: and instead, what’s happening?

Frank LoMonte: Instead, Congress has been sitting on their collective hands for decades. We see these horror stories piling up where parents can’t get videos of their own children’s injuries or deaths, can’t find out if the bully that attacked their child was punished or not. Congress just sits on their collective hands, because the people who have their ear, the people who represent schools and colleges in court, and the privacy advocacy community, are telling them that the only thing wrong with FERPA is it doesn’t cover enough. It’s not broad enough, it’s not extensive enough, it doesn’t cover enough things. All of the discussion on Capitol Hill is about making access worse, and not better.

Sara Ganim: I know that the problem of access is not something that’s unique to public education. But it does feel like after a full season of reporting on this, that FERPA adds this extra layer that you don’t Have when you’re talking about bars to entry or lack of access to documents in any other kind of agency reporting. I wonder if you can talk about that.

Frank LoMonte: Yeah, I think there’s both a law issue here and a mentality issue here. When you’re talking to educational institutions, so often they have the mentality, like what’s good for General Motors is good for the country, right? What’s good for the superintendent, what’s good for the principal is good for the kids and good for the families. So, they confuse their own self-interest with the public’s interest. They think, well, this works great for me, and it does work great for them, works great because they can turn down the request for information that they want, and they can appear virtuous in doing that. Oh, we’d love to help you. We’d love to cooperate, we would love to be more transparent, we’d love to be more forthcoming, but our hands are tied by this law, and you understand we have to value the funding of our school, we have to value privacy.  It enables them to deny a request for information that would be inconvenient or embarrassing to them, and to waive the virtue flag in doing it. That’s what’s going on. There’s both a law problem that the law is hopelessly broken, it’s written in a way that nobody can understand it, and nobody can coherently apply it. But you’ve got a mentality problem too, that education institutions don’t tend to think of themselves as government agencies, they don’t tend to think of themselves as part of the government in the same way that the EPA is or the Department of Transportation is. They see themselves as being above public accountability, and that’s just a mentality shift that’s going to have to change along with the law.

I think we should talk about the fact that if you roll all the way back, if you telescope the lens all the way back and you think about the transparency issues that we’ve been talking about throughout this series of the podcast, the starting point with open government laws is always that when the public has any interaction with a state agency or a local agency, that interaction creates a trail of public records, and there are good reasons for that. Even if those records, frankly, are something that people find embarrassing or uncomfortable to share.

You go to the courthouse to get a divorce, that creates a public record. You sell your house, that creates a public record. You get a speeding ticket, that creates a public record. Those laws are there for a reason. It’s not because we’re nosy, it’s not because we’re voyeurs, it’s not because your divorce, or your speeding ticket are of any particularly profound interest. But it’s so that we know that the government is doing its job fairly and reliably and honestly, so that we know if people are getting their tickets fixed, or we know if VIPs are getting their divorce files sealed or their divorce cases expedited, or are certain judges not giving alimony to women, because they’re sexist. We need to know that stuff, and the only way we know it is through rigorous enforcement of these disclosure laws.  Schools and colleges are no different. They’re not above the law, they tend to think of themselves as occupying this kind of rarefied place, because they’re doing God’s work, educating kids, but some of them are not doing a great job, and some of them, frankly, are not run by honest people. The only way we find that out, is through the enforcement of disclosure laws.  Yeah, there’s a tendency to think that we’re dealing with kids here, and we have to, there’s no such thing as too much privacy, we have to enforce privacy laws at all costs to protect children. But so often, it’s the case, look at juvenile detention centers, look at mental health facilities, anytime you have people that are in this custodial setting where people in authority have a lot of power over their welfare and their safety, privacy doesn’t end up actually working for them, privacy ends up working against them. Privacy is why we can’t go inside a juvenile detention center and see if kids are being abused, privacy is why we can’t go into mental health facilities and see if they’re squalid. Privacy is a great thing until it’s not. Privacy is a great thing, until it’s weaponized to actually isolate vulnerable people from getting help.

Sara Ganim Narration: If you asked me the one thing I’ve learned this season — it’s that. 

That we’ve all been conditioned to believe that privacy is good for the vulnerable. That it is there to protect them. But in reality, a lot of times, privacy hurts the vulnerable. It keeps those who could step in and help  advocates, journalists, lawyers, lawmakers from being able to do so. I started reporting for this season a year and a half ago trying to figure out why, so often, I found myself writing the same horrible stories over and over again, with out any real change. 

Wesh 2 News: a redshirt freshman, was rushed to the hospital

CNN: “Charged in a fraternity hazing death

CBS: Weeks of constant bullying cost him his life

CBS Boston: University student was killed in a Boston apartment she was renting with friends. 

Wave 3 News: The University of Kentucky is under fire, accused of failing to properly investigate reports of sexual assault. 

NBC News: I went to a couple of fraternity parties where I was groped from behind.

CBC News: “When a student attacked him attacked him and sent him to the hospital with multiple injuries. 

CNN News: We begin our program with broken hearts in yet another American town which today became the site of yet another deadly school shooting

Sara Ganim Narration: and I think after 18 months, and more than 50 interviews, the closest answer I can give is that many schools have lost their way. Instead of transparently dealing with recurring, known problems, like fraternity hazing, head injuries, sexual assault, bullying, campus safety, and other issues, schools hide from them, because theyre afraid to deal with them publicly. It’s an imaginary thing. For decades we’ve bought into this idea that schools are places for the free and open exchange of ideas — that’s how they’ve always promoted themselves. But you can’t have free and open exchange of ideas when only a handful of insiders have access to complete information. What universities seem to have become .. it resembles more of a big business

Jim Finkelstein:This issue of private interests versus public interests is really the major question for these public institutions today.

Mike Robb: These massive university systems that have billions of dollars

Alexa Capeloto: There is more privacy and secrecy and not as much oversight, 

Sara Ganim Narration: P-R Machines First 

Daphne Beletsis: Blatant dishonesty, lack of cooperation

Abigail Owens: I didn’t feel valued as a human being for a second that I was there.

Sara Ganim Narration: Institutions of learning, second. It reminds me of something, something the public relations officer at my own state university used to say to student journalists like me, when we were covering news there.  He’d say “Why should I comment on your story? If I comment, the story has life. If I don’t comment, it goes away.” A little later in my career, as I covered other universities, I realized, this was not an isolated practice — in fact, it was the norm. It is not just common, but well-known, that university officials will ignore, distort, and flat-out lie to journalists. Typically, they do it off the record, sewing doubt in the reporters’ mind, in a way that can’t be traced back to them.  Fifteen years ago, when I was a student reporter,  I didn’t really know how to respond to these tactics, even though I knew it was wrong, in my gut I didn’t quite have the perspective to say anything about it. But I have something to say now: The reason, Mr. chief communications officer, that you should respond is because at an institution of learning, a public institution of learning. The aim should be to do better, to make lives better, to enrich the young people who attend your campus so they can become better, and in turn make society better. The aim should not be to cover things up because you might temporarily look bad. That is not your mission. That does not promote learning. Unless of course you count the lessons learned from bad behavior like the lesson that I learned from the chief communications officer at my school. Because that was the most powerful lesson that I learned in college, one that my tuition dollars did not buy. And making sure these kinds of stories don’t ‘go away’ when officials like him fail to comment or count or provide data. Well, that’s what motivates my reporting each and every day.

This is the last episode of season one of Why Don’t We Know. Over the next several weeks, we may drop a few extras, here and there, on topics that are timely. But regular episodes won’t resume until the Fall of 2021, when we premiere Season 2, focused on secrecy in the criminal justice system.  As always, thanks for listening. 

This episode was written and produced by me, Sara Ganim, with additional reporting by Conner Mitchell.The associate producer is Tori Whidden. This episode was edited by Amy Fu.

music for this episode, and the entire season, was composed by Daniel Townsend. Audio Mixing was done by James Sullivan. The executive producer is Frank Lomonte.

This entire season of Why Don’t We Know couldn’t have been achieved without the tremendous reporting of students at the University of Florida. They are:

Camille Respess

Joseph Hastings

Jessica Cubelo

Brittney Miller

Gabriella Paul

Angela Dimichele

Marianna Faiello

Brianna Edwards

Adrianna Merino

and Mckenna Beery

In addition, our phenomenal and patient edit team includes:

Amy Fu

James Sullivan

Luke Barrientos 

and Matthew Abhamson

‘Why Don’t We Know’ is a production of the Brechner Center For Freedom of Information at The University Of Florida. A special thanks to the Hearst Family Foundation for proving the grant money that supported this reporting. For more information, as well as updates, please visit our website at www.whydontweknow.org