FERPA and a Student Who Might Make a Professor Cringe

In a case highlighted by FIRE,
Oakland University in Michigan issued a three-semester suspension to a student
named Joseph Corlett, allegedly in response to some of Corlett’s in-class
writings that passed well beyond the bounds of good taste (in a writing journal, he ruminated on the sexual attractiveness of his female professors) and to Corbett’s stated position in favor of allowing guns on campus, which some at Oakland seem to have interpreted as threatening. Interpreting the material about the case in the light most favorable to Corlett, he seems like the type of student whose name would cause a professor to cringe if he or she saw it on the class roster. Nonetheless, as FIRE’s Adam Kissel pointed out, “It is not against the law to be–or to be perceived as–a creep.”

The Corlett case has attracted attention mostly because it addresses the question of what constitutes protected, as opposed to threatening, speech on campus. But an equally interesting aspect of the case has been Oakland’s two-headed–and mutually contradictory–approach to whether the Family Educational Rights and Privacy Act (FERPA, a.k.a., the Buckley Amendment) should apply to the university’s response to the Corlett case.

FERPA, passed in 1974, gave students access to their education records, an opportunity to seek to have the records amended, and some control over the disclosure of information from the records. With several exceptions, schools must have a student’s consent prior to the disclosure of education records.

Invoking FERPA allows the school to either (a) avoid defending the indefensible; or (b) remain quiet about an issue whose further exposure might embarrass politically powerful groups on campus, usually race/class/gender-oriented faculty or administrators.

Despite this pattern of universities misrepresenting FERPA for their own self-interest, the law clearly does prevent schools from releasing and commenting upon some student information. A college can’t, for example, issue a press release revealing a student’s grades, and some items relating to student disciplinary procedures likewise must remain confidential.

The FERPA issue has played out in a most unusual fashion in the current controversy at Oakland. On the one hand, according to today’s Inside Higher Ed, “Officials at Oakland, a public institution in Michigan, declined to comment on the case, and said that the institution could not do so without violating privacy rules.” On the other hand, at least two members of Oakland’s faculty appear to believe that FERPA provides no barrier to their discussing Corlett’s disciplinary proceedings.

Sherry Wynn Perdue, the director of the Oakland Writing Center, bizarrely accused FIRE of having “victimized” Corlett’s instructor, adding that the student “never once addressed the course readings but instead used it as a platform to sexualize the instructor, describe his sexual relationship (or lack thereof) with his wife, write about a student in the course, and compose a fake letter from the course instructor to himself in which he admits that his entries are inappropriate and would be met with a visit to the Dean of Students.”

If FERPA protects anything, it would appear to ensure that university faculty cannot discuss with the media the strengths and weaknesses of a student’s specific class assignments. Perdue, however, appears to disagree with her university counsel’s office on the question.

In a comment on Adjunct Law Prof Blog, meanwhile, English professor Kathleen Pfeiffer took a loose construction of FERPA in another manner, by discussing the evidence that the disciplinary proceeding considered. (Pfeiffer’s comment did not reveal how she obtained this information.) According to the professor, “The University Conduct hearing in which Mr. Corlett was found responsible for repeatedly and deliberately intimidating his professor and
another student in the class considered a range of evidence, not just his
writing journals. Moreover, Mr. Corlett had a history of inappropriate
classroom and campus behavior prior to this event. His case was reviewed by a
committee of faculty and student representatives, and University procedures
were followed to insure that Mr. Corlett received a full and fair hearing. Pfeiffer appeared oblivious to the irony of claiming that “University procedures were followed to insure that Mr. Corlett received a full and fair hearing” in a comment that appears to violate those same procedures.

I tweeted Pfeiffer to ask whether she considered her comments as inappropriate under FERPA restrictions. She replied, “I’m not sure how FERPA works when the student misrepresents the details of a confidential procedure.”

Pfeiffer’s response was extraordinary in two respects. First, if a professor is unsure whether FERPA applies to her public comments about a student’s disciplinary procedures, it might make sense to check about the issue with the university counsel’s office instead of simply posting the item. Second, here’s the
relevant section of Oakland’s disciplinary procedures, which Pfeiffer
referenced: “The Dean of Students Office administers the university judicial process and insures that student rights are protected. The judicial system provides for the timely and orderly investigation and adjudication of alleged nonacademic and academic conduct violations of community standards. All conduct records are maintained in the Dean of Students Office and protected by the Family Educational Rights and Privacy Act of
1974.” Oakland’s procedures contain no provision allowing individual university
faculty to bypass FERPA if they believe that a student is publicly misrepresenting the nature of the confidential discussion in the student’s disciplinary hearing.

Now that both Perdue and Pfeiffer have ignored their own university’s interpretation of FERPA, how will the Oakland administration respond?