The abortive University of Minnesota football walkout could have been avoided if the university had been more forthcoming about the seriousness of disciplinary charges that led to the removal of 10 players from the Holiday Bowl roster.
It took the leak of internal investigative documents to a local TV station to awaken Gopher players to the severity of sexual-misconduct allegations against their teammates. It shouldn’t have.
Time and again in the course of the bowl-boycott saga, the U cited the federal Family Educational Rights and Privacy Act as an excuse for being opaque about its disciplinary practices. Coach Tracy Claeys even claimed that FERPA forbade him from disclosing the number of student-athletes that the U had recommended for expulsion.
FERPA is a train wreck of a statute. Intended to protect only the confidentiality of “education records,” the law has become a catchall excuse for educational institutions to avoid accountability.
In New York, a grieving family was told that if they wanted to see the video of the football game where their son was fatally injured, they’d have to take the school to court because videos of football games are “FERPA education records.” In California, a mother nearly had to sue to get the scores of her own children’s swimming meets. If your child comes home beaten up on the school bus and you ask to see the surveillance video to identify the attackers, prepare to be turned away — because, yes, that privacy law.
Even statistics increasingly are being concealed under the blanket of FERPA. In Ohio, you can’t find out how many times guns were brought into your child’s school, because the state Department of Education claims revealing the data would — how, nobody can explain — compromise federally protected privacy rights.
Congress drafted FERPA in 1974 with one narrow purpose in mind: To keep K-12 schools from disclosing psychological evaluations and similar documents to law enforcement before parents had the opportunity to inspect and correct them for misleading information. But thanks to aggressive lawyering by secretive colleges — and “home cooking” from deferential state-court judges — the statute has been judicially expanded beyond all rational boundaries. One Ohio court even classified e-mails between a football coach and a booster suspected of offering cars to recruits as “education records.”
Image-fixated colleges have turned the privacy shield of FERPA into a sword of secrecy — in one extreme recent case, even suing their own students. University of Kentucky President Eli Capilouto is fighting the campus newspaper to block the release of documents detailing how the university dawdled in allowing an accused serial predator to keep his professorship and then quietly resign — documents that the university is asking a judge to classify as “student education records.”
Notably, FERPA has in fact never been enforced against any educational institution in its nearly 43-year history — that’s right, not a single college or school has been found to be a violator and fined a nickel. Yet college attorneys continually cite the statute’s theoretically ruinous financial penalties to justify withholding records that the public has a right to see.
If the Minnesota football case does not awaken Congress to the overdue need to rewrite this disastrously broken statute, then somebody needs to check for a pulse.
But where college sports are concerned, reform needn’t wait for Congress. The National Collegiate Athletic Association (NCAA) has all the authority it needs to make college athletics more transparent — if the college presidents who run the organization decide to do so.
Every college athlete signs an NCAA-mandated privacy waiver as a condition of participation in intercollegiate sports. At the Division I level where Minnesota plays, the waiver states in part: “You … agree that information regarding any infractions matter in which you may be involved may be published or distributed to third parties as required by NCAA policies, bylaws or procedures.”
In other words, if NCAA “policies” required athletic departments to release more information about disciplinary infractions by athletes, then the public wouldn’t be left to wonder why Johnny isn’t playing — or whether Johnny is playing and shouldn’t be.
Helpfully, U President Eric Kaler is one of 24 members of the NCAA’s Division 1 board of directors — the very people who write those NCAA policies. He should seize this moment to show leadership and make sure the NCAA clarifies that, when athletes are accused of serious wrongdoing beyond petty victimless indiscretions, athletic departments must disclose everything they can without compromising the legitimate privacy interests of victims.
Colleges often tell the public, “We’d like to tell you more, but our hands are tied.” In fact, college presidents hold the keys to their own privacy handcuffs. Now it’s up to them to prove they’re sincere about accountability.
Frank LoMonte, a lawyer, is executive director of the Student Press Law Center (www.splc.org), which helps journalists obtain public records from schools.