0

Some time after graduating, a student publicly alleged that a professor wrongly accused and failed him for academic dishonesty. I was a teaching assistant (TA) for this class one semester before the student took it and noticed various discrepancies between this student's story and factual information I gained as a TA regarding the academic dishonesty process.

As the basis for his allegation, the student claims that he received reasonable help from a TA for the class and that this TA confirmed the help was reasonable. If I were to ask each TA for the class at the time if they were the TA whom this public allegation refers to, could they confirm/deny without violating FERPA? Am I allowed to share this information publicly? (e.g. "I asked each TA if they were the TA this message refers to. All TAs denied it. / [name] confirmed and agreed to speak to the professor.")

Are there other actions I can take to determine the truth of this student's allegation and publicly share this information?

  • What do you hope to gain? If anyone was defamed, it wasn’t you. Let people fight their own battles, you can help them if they want your help. – Dale M Jul 11 at 12:50
  • This is an area where university policy is likely to be stricter than federal law, so even though it is not a violation of FERPA, even the FERPA hammer is applied to the university. And "yes you can" has to be viewed from the perspective of university policy. – user6726 Jul 11 at 14:46
2

Step One: Does FERPA apply?

Are you or the other TAs still employed by the university? Any of you who are no longer working for the school are no longer bound by FERPA.

Step Two: Is your information an "educational record"?

FERPA links federal funding to policies governing the the release of "educational records," which are defined in the other answer.

The information the other TAs would give you does not sound like it would not be an educational record, as it is an oral account of their memory, not a record maintained by the educational institution. But if TAs normally maintain a record of the kinds of interactions we're talking about, and they consulted those records to answer your question, the answer might be different.

It's less clear whether the statement you're talking about providing would be an educational record. If neither you nor the university "maintain" the record, then it doesn't sound like it would fall within the language of the rule. So perhaps whomever you're hoping to hand it off to could draft it, hand it to you to sign, and then take it back. At that point, it's never been maintained by you or the university.

A few other notes:

  • If this is for a lawsuit, your statement will have virtually no value, as your hearsay account of those TA's stories would be inadmissible.

  • FERPA does not say that schools may not release educational records; it merely says that they are ineligible for federal funding if they have a "policy or practice" of permitting the release of educational records. So unless you are a school policymaker, you cannot violate FERPA. Of course, the school probably has nondisclosure agreements or other policies in place to ensure that educational records are not released improperly. You need to also consult those rules to determine your obligations.

  • FERPA is very poorly enforced by the federal government. At least as of the last time I looked at this question, no school had ever lost any funding due to a FERPA violation. Also, FERPA does not create any liability for the person who discloses the record, meaning that you could not be sued for a FERPA violation (though it's possible you could be held liable for violating some agreement with the school).

| improve this answer | |
1

This sounds more like a retaliatory privacy tort related to a separate defamation tort than a FERPA problem. It's unclear whether a number of TAs acting in concert about a matter that touches on the scope of their employment rises to the level of a "practice" sufficient to endanger the institution's federal funding.

20 U.S.C. 1232g(b)(1) states:

No funds shall be made available under any applicable program to any educational agency or institution which has a policy or practice of permitting the release of education records (or personally identifiable information contained therein other than directory information, as defined in paragraph (5) of subsection (a)) of students without the written consent of their parents to any individual, agency, or organization

Section (a)(4) defines the term "education records" as follows:

(A) For the purposes of this section, the term “education records” means, except as may be provided otherwise in subparagraph (B), those records, files, documents, and other materials which— (i) contain information directly related to a student; and (ii) are maintained by an educational agency or institution or by a person acting for such agency or institution. (B) The term “education records” does not include— (i) records of instructional, supervisory, and administrative personnel and educational personnel ancillary thereto which are in the sole possession of the maker thereof and which are not accessible or revealed to any other person except a substitute;

(a)(5)(A) explains that:

For the purposes of this section the term “directory information” relating to a student includes the following: the student’s name, address, telephone listing, date and place of birth, major field of study, participation in officially recognized activities and sports, weight and height of members of athletic teams, dates of attendance, degrees and awards received, and the most recent previous educational agency or institution attended by the student.

| improve this answer | |
  • Thanks for the information. Could you please clarify which privacy regulations would be violated? Can sharing factual information constitute defamation? – kzl Jul 11 at 12:16
  • 1
    My presumption is that the student is the one doing the defaming. But publicly sharing private information (judged by what a reasonable person might consider violative if shared) for a nonpublic purpose (as in this case) is the privacy tort I'm thinking of. Some states have privacy laws as well. – Pat W. Jul 11 at 13:53
  • Thanks for clarifying. I noticed my state does not recognize a legal claim for publication of private facts. Out of curiosity, if it did, would "legitimate public interest" be a valid defense, given that the student has made himself a public/newsworthy figure among those who have read his allegation? – kzl Jul 11 at 18:42
  • 1
    This is called the newsworthiness exception: the First Amendment bars recovery (on the hypothetical student's part) for your hypothetical publication when the your disclosure is in the public's interest (unless the publisher acts with malice). It's a broad exception, but it's a little hard to see much public interest in unfiled defamation suits and the issues that touch on them. – Pat W. Jul 11 at 20:33

Your Answer

By clicking “Post Your Answer”, you agree to our terms of service, privacy policy and cookie policy

Not the answer you're looking for? Browse other questions tagged or ask your own question.