Talking Stick - January/February 2019 - 44

about the safety of a student or faculty
and where there was a competing
concern about FERPA, my concern
about safety and security would
trump any concerns about FERPA. In
general, universities are much more
informed about health and safety
exceptions than ever before, but there
are tons of universities and there's
always going to be outliers."
The law has come to the forefront
more recently in cases involving
accusations of sexual assault. As just
one example, last year a state court
judge sided with the University of
Kentucky against its independent
student newspaper, the Kentucky
Kernel, which had requested
documents involving the dismissal
of a former professor alleged to have
sexually assaulted and harassed
students. Initially, the state's attorney
general said the university had to
release redacted versions of the
records in compliance with the state's
open records laws. Since the university
could not appeal the decision, it
sued the student newspaper, and the
judge ruled that, under FERPA, the
university did not have to release
records regarding allegations. Critics
have argued, according to Inside Higher
Ed, that "the lawsuit is just the latest
example of colleges hiding behind
student privacy laws to protect their
image and reputation." In September,
the state's Court of Appeals heard the
Kernel's appeal of the ruling.
FERPA is part of the problem
that can cause confusion in Title IX
cases, Rooksby says, but certainly not
all of it. "There is needed a national
law focused on how sexual assault
matters should be handled on college
campuses." Frank LoMonte, director
of the think tank the Brechner Center
for Freedom of Information, says
that colleges and universities all too

44

TALKING STICK

often wrongly use FERPA to avoid
giving journalists and others access
to records they should legitimately
get. He thinks there are a number
of reasons for this. "People have
received really terrible training on

FERPA IS NOT A
MAJOR ISSUE
IN THE DAY-TODAY RUNNING
OF MOST
COLLEGES AND
UNIVERSITIES.
BUT WHEN
THERE IS AN
EVENT -- SUCH
AS A SUICIDE
OR A SCHOOL
SHOOTING
OR A SEXUAL
HARASSMENT
CASE WHERE
QUESTIONS
ARISE ABOUT
WHO WAS TOLD
WHAT WHEN
-- FERPA WILL
SUDDENLY BE IN
THE NEWS.

what is and what is not covered by
FERPA. It is often oversimplified by
people who haven't done the legal
research." In addition, he notes, "The
law itself is really hard to understand
and unclear and there's some crazy
off-the-wall court interpretations that
expand FERPA in irrational ways." But
colleges do understand that you have
to act in extreme ways to be penalized
by FERPA, and "for them to wave it
around is just bad faith."
Rooksby agrees that this can
sometimes be the case. "Institutions
face more freedom and choice than
they may wish to portray to students,
to the media, to the public," he
explains. "It's much more convenient
to say a law with an acronym that
nobody knows what it stands for
prevents the release of certain
information, when really what they
mean is, 'we're deciding not to release
the information.' Institutions may not
want it to be known they've actually
made that choice."
Not surprisingly, some disagree.
"That's a cynical take and doesn't
comport with day-to-day realities,"
Schneider says. "There are a lot of
times I imagine a university wants
to share information because it adds
meaningful perspective - it explains
why an action was taken, and it might
put the university in a more flattering
light. Lots of times universities are
clamoring to provide additional
context, and sometimes it's the role of
the lawyer to say we can't because we
can't divulge education records."
While mental health and Title IX
questions can be among the most
difficult for university officials, other
issues that seem more mundane are
rarely addressed, such as core record
management. "Particularly with the
rise of digital technology, there are
many different areas on campus



Talking Stick - January/February 2019

Table of Contents for the Digital Edition of Talking Stick - January/February 2019

Talking Stick - January/February 2019
Vision
Just In
Calendar
Your ACUHO-I
Transitions
Res Life
Academic Initiatives
Special Focus
Underlying Expectations
Private Matters
Conversations
First Takes
Around Student Affairs
New Members
Snapshot
Talking Stick - January/February 2019 - Intro
Talking Stick - January/February 2019 - BB1
Talking Stick - January/February 2019 - BB2
Talking Stick - January/February 2019 - Talking Stick - January/February 2019
Talking Stick - January/February 2019 - Cover2
Talking Stick - January/February 2019 - 1
Talking Stick - January/February 2019 - 2
Talking Stick - January/February 2019 - 3
Talking Stick - January/February 2019 - 4
Talking Stick - January/February 2019 - 5
Talking Stick - January/February 2019 - 6
Talking Stick - January/February 2019 - 7
Talking Stick - January/February 2019 - Vision
Talking Stick - January/February 2019 - 9
Talking Stick - January/February 2019 - Just In
Talking Stick - January/February 2019 - 11
Talking Stick - January/February 2019 - 12
Talking Stick - January/February 2019 - 13
Talking Stick - January/February 2019 - 14
Talking Stick - January/February 2019 - 15
Talking Stick - January/February 2019 - 16
Talking Stick - January/February 2019 - 17
Talking Stick - January/February 2019 - Calendar
Talking Stick - January/February 2019 - Your ACUHO-I
Talking Stick - January/February 2019 - Transitions
Talking Stick - January/February 2019 - 21
Talking Stick - January/February 2019 - Res Life
Talking Stick - January/February 2019 - 23
Talking Stick - January/February 2019 - 24
Talking Stick - January/February 2019 - 25
Talking Stick - January/February 2019 - Academic Initiatives
Talking Stick - January/February 2019 - 27
Talking Stick - January/February 2019 - 28
Talking Stick - January/February 2019 - 29
Talking Stick - January/February 2019 - Special Focus
Talking Stick - January/February 2019 - 31
Talking Stick - January/February 2019 - 32
Talking Stick - January/February 2019 - 33
Talking Stick - January/February 2019 - Underlying Expectations
Talking Stick - January/February 2019 - 35
Talking Stick - January/February 2019 - 36
Talking Stick - January/February 2019 - 37
Talking Stick - January/February 2019 - 38
Talking Stick - January/February 2019 - 39
Talking Stick - January/February 2019 - Private Matters
Talking Stick - January/February 2019 - 41
Talking Stick - January/February 2019 - 42
Talking Stick - January/February 2019 - 43
Talking Stick - January/February 2019 - 44
Talking Stick - January/February 2019 - 45
Talking Stick - January/February 2019 - 46
Talking Stick - January/February 2019 - 47
Talking Stick - January/February 2019 - Conversations
Talking Stick - January/February 2019 - 49
Talking Stick - January/February 2019 - 50
Talking Stick - January/February 2019 - 51
Talking Stick - January/February 2019 - First Takes
Talking Stick - January/February 2019 - Around Student Affairs
Talking Stick - January/February 2019 - 54
Talking Stick - January/February 2019 - New Members
Talking Stick - January/February 2019 - Snapshot
Talking Stick - January/February 2019 - Cover3
Talking Stick - January/February 2019 - Cover4
Talking Stick - January/February 2019 - CCover1
Talking Stick - January/February 2019 - CCover2
Talking Stick - January/February 2019 - C1
Talking Stick - January/February 2019 - C2
Talking Stick - January/February 2019 - C3
Talking Stick - January/February 2019 - C4
Talking Stick - January/February 2019 - C5
Talking Stick - January/February 2019 - C6
Talking Stick - January/February 2019 - C7
Talking Stick - January/February 2019 - C8
Talking Stick - January/February 2019 - C9
Talking Stick - January/February 2019 - C10
Talking Stick - January/February 2019 - C11
Talking Stick - January/February 2019 - C12
Talking Stick - January/February 2019 - C13
Talking Stick - January/February 2019 - C14
Talking Stick - January/February 2019 - C15
Talking Stick - January/February 2019 - C16
Talking Stick - January/February 2019 - C17
Talking Stick - January/February 2019 - C18
Talking Stick - January/February 2019 - C19
Talking Stick - January/February 2019 - C20
Talking Stick - January/February 2019 - C21
Talking Stick - January/February 2019 - C22
Talking Stick - January/February 2019 - C23
Talking Stick - January/February 2019 - C24
Talking Stick - January/February 2019 - C25
Talking Stick - January/February 2019 - C26
Talking Stick - January/February 2019 - C27
Talking Stick - January/February 2019 - C28
Talking Stick - January/February 2019 - C29
Talking Stick - January/February 2019 - C30
Talking Stick - January/February 2019 - C31
Talking Stick - January/February 2019 - C32
Talking Stick - January/February 2019 - 95
Talking Stick - January/February 2019 - 96
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