The Public's Right to Know
About Student Discipline

Acts of violence and other criminal conduct by college and university students are usually reliable topics of community concern.

National media have well documented more notorious incidents that resulted in the deaths of students and educators. Hazing and similar kinds of activity attract local interest as well.

In working to control such conduct, school officials maintain records to detail what students have done, as well as the institution's response. Typically these records are not limited to reports in a file cabinet or on a computer.

Surveillance cameras and other monitoring aids may document conduct or investigative efforts, and create visual or audio records as well.

Administrators, however, are often wary of where those records may end up. Efforts to enforce a school's discipline code might become the lead story on the local television news broadcast, or the topic of a newspaper editorial.

Most would agree that merely because acts of student misconduct might shine a media spotlight on an institution is not a reason to refrain from disciplining students. Understanding recent changes in laws student records, however, is an important prerequisite to handling campus discipline matters.

The Family Educational Rights and Privacy Act (FERPA) protects records that institutions (both K-12 and postsecondary) maintain about their students. This federal law is the formidable barrier to media and community members who want to know all they can about student misconduct.

State laws that purport to allow public access to institutional records pose a conflict with FERPA to the extent that they support the public's right to know when a school disciplines its students.

School officials, then, should be mindful of the following:

• FERPA provides that, in general, most information a college or university maintains about a student-what FERPA deems "education records"-is confidential, and may not be disclosed to any third party without the student's prior consent.
  
  The law has long held that the term "education records" is not limited to paper files. Electronic and digital records fall under the term as well. Moreover, video surveillance records and audio tape recordings can qualify as education records.
  

• Excluded from the "education records" category under FERPA are records both created by a law enforcement unit of the institution for a law enforcement purpose, and maintained by that unit. This exclusion would apply as well to records created and maintained by the law enforcement unit in connection with student discipline matters; it does not, however, automatically deem those records open to the public. Rather, it means that, in most cases, prior student consent is not required before disclosure.
  
  
• FERPA allows-but does not require-an institution to disclose the "final results" of a disciplinary action against a student who has committed a "nonforcible sex offense" or "any crime of violence" as defined by federal law. The "final results" of the discipline are limited to the student's name, the violation committed, and any penalty the institution imposes against the student.
  
  This grant of discretion applies only to information regarding student discipline over violent or nonforcible sex offenses. Otherwise, records that document student discipline will likely be deemed education records, and disclosable only with the student's prior permission.

• While FERPA purports to afford discretion in releasing discipline information over certain sex offense and violent conduct, state public records laws may challenge a school's exercise of that discretion. State public records laws generally favor disclosure of records that are not expressly deemed confidential under law, holding that disclosure advances the public interest.

FERPA clearly protects records documenting the less serious varieties of student misconduct. For discipline involving violence and sex offenses, however, media and community members will predictably assert state public records laws in hopes of forcing school officials to disclose the names of the students who receive discipline, as well as their punishments.

Published in the Spring 2004 Edition of In Brief