Ananya Kumar-Banerjee, Legal Analyst
Ananya supports Meghna Sridhar in our US practice, representing survivors in Title IX and institutional child sexual abuse cases.
The Family Educational Rights and Privacy Act (“FERPA”) limits what records schools can lawfully disclose. However, exceptions in FERPA allow lawful disclosure of Title IX documents to certain people and of other records where legally relevant.
What is FERPA?
FERPA is a federal statute that protects the privacy interests of students (18+ and/or in college, or through their parents when students are underage). It prevents institutions that receive federal funds, including through the federal financial aid program, from disclosing student education records. Student education records include any document with personally identifiable information. They do not include references to students in the directory, law enforcement records (e.g., those kept by campus police), or indirect portrayals of students (e.g., where a student is in the background of a photograph).
Even though it protects many records from disclosure, FERPA provides some key exceptions.
Transparency for Students on sexual misconduct – the Disciplinary Record Exception
If someone is the victim of a Title IX incident, FERPA does not prevent them from requesting records of the outcome of a Title IX proceeding. FERPA allows victims of Title IX incidents to request the records of their Title IX proceedings, provided there is no conflicting law that would prevent this. This disclosure is legal even where the school does not find a violation of Title IX and does not require the alleged perpetrator’s consent.
If a school internally determines there was a violation of Title IX, it may disclose certain records to any party without the perpetrator’s consent, as there is an exception to disclosure rules where an individual has committed a “crime of violence or non-forcible sexual offense” and has violated school policy.
In a Kentucky case, this exception enabled student journalists to legally request records of a professor’s history of sexual assault on campus. See Univ. Of Kentucky v. Kernel Press, Inc., 620 S.W.3d 43 (Ky. 2021).
Similarly, in a North Carolina case, a university was required to disclose records relating to students found guilty of rape, sexual harassment, and assault between 2007-16 to a local newspaper under state public records disclosure laws. See DTH Media Corp. v. Folt, 374 N.C. 292 (2020). Both cases required courts to “read together” state public records laws and FERPA. “Read together” means that the courts had to look at two statutes on the same issue and produce an interpretation of the law that is supported by the text of both instruments. In both instances, third parties used state laws to request records from public universities. The universities failed to use FERPA as a defense because of the ‘disciplinary record’ exception.
Disclosure in Legal Proceedings
FERPA also cannot be used as a total defense where records are sought by a judicial order of a lawfully issued subpoena. A judge will enforce these requests by applying a test balancing the need for records with the privacy interest of the student. Although the test varies across the United States, generally the FERPA-protected records must be material to the case for the judge to direct disclosure. Even where the judge directs disclosure, the school may redact information or be directed to do so to ensure the protection of student’s privacy interests.
Please note that the above does not constitute legal advice.
Every case is unique, and the evidence required will always vary depending on the specific facts of the case. To ensure that your best interests are protected, it is always best to seek legal advice as soon as possible. Here at McAllister Olivarius, our trauma-informed Title IX experts will always provide you with comprehensive information and guide you every step of the way in your pursuit of justice.