*Historical Developments: Ch. 2
*Contemporary Problems: Ch. 3
History Pre- WWI: Not much!
*Licensing, prior restraint, bonds & seditious libel
*1735: John Peter Zenger acquitted -- hurray!
--But not much tolerance for Patriots and no precedent
*1791: First Amendment part of Bill of Rights
*1798: Alien & Sedition Acts
--Ink barely dry before Free Speech attacked
--Expires gracefully in 1801 but idea lives on
--Patriot Act?
*Censorship rears its ugly head during 19th c.
--Abolitionist period, Civil War
--Labor unionists, birth control advocates, anarchists
Post-WWI : Mostly Gains
*1917: Espionage Act (aimed at war dissenters)
*1918: Sedition Act (don’t obstruct draft)
*1919: “Clear & Present Danger” Test (Schenck)
--Justice Oliver Wendell Holmes
*1927: Sedition Test (Whitney v. California)
*1940: Smith Act adopted
*1951: Smith Act ruled unconstitutional
--Dennis v. U.S.
*1957: Scope of Smith Act narrowed
*1969: Brandenburg v. Ohio (tough sedition test)
Significant Sedition Cases
*1925: Gitlow v. N.Y. (due process)
*1936: Grosjean v. American Press Co.
--No discriminatory taxes on press by Huey Long
--Also Mpls Star v. MN Comm. Of Revenue (1983)
*1931: Near v. Minn. (prior restraint)
*1971: NYT v. U.S. and U.S. v. Wash. Post
--Medium blow to prior restraint (heavy burden)
*1979: U.S. v. Progressive (how to make a bomb)
*1996: Rice v. Paladin Enterprises, Inc.
--Mass Media not responsible for violence (59)
*2002: Planned Parenthood of the Columbia/Willamette, Inc. v. American Coalition of Life Activists (p. 60)
Contemporary problems: War
Vietnam War free press: Aberration
Grenada, Panama, Balkans very controlled
Press Pools: Gulf War Ghetto
*1991: Nation Magazine v. U.S. DOD
*(Most censorship EVER during wartime)
1993: JB Pictures, Inc. v. Defense Dept.
What never went to court?
*Shortly after 9/11 attacks, U.S. Government requested that TV broadcasters not show tapes of Osama bin Laden making certain statements. Broadcasters complied.
Contemporary Problems: Ch. 3
*Schools and censorship
*War
*Time, place and manner restrictions
*Hate Speech
*Immigrants and resident aliens
*Internet
Wartime reporting:Mixed record
Censorship accepted until Vietnam War
*War "snuck up" on us so restrictions not in place from the beginning; cat out of the bag
*Government used propaganda to undermine what reporters said; lies were told
Grenada (1983): pool reporters only
Panama (1989): "We missed the war"
Gulf War (1990): 800 reporters, but short leash
*Also, the news media did not complain
*Dover AFB off-limits (1993)
The war on terror: litmus tests
*2003: Flynt v. Rumsfeld (Why Larry Flynt?!)
--No right of access to U.S. ground troops
*DOD announces that gov’t employees who leak classified info to the press can be prosecuted
*Bodies cannot be viewed at Dover AFB
*Embedded journalists ok but "blackballing" existed; sanitized; narrow; 16 Non-embedded died; Heavy "spin" put on press releases
*See p. 87 for more on embedding problems
Reasons given for gov’t censorship during wartime
1. To deny the enemy information that might be helpful in prosecuting the war;
2. To try to protect the security of the nations’ fighting forces; and
3. To sustain the morale of the people.
PROBLEM: Censorship is too often used to shield serious military blunders or questionable policies.
Do students have free speech rights?
High schools are different from universities
*1969: Tinker v. Des Moines School District
--Anti-war armbands
*1988: Hazelwood Sch. Distr. v. Kuhlmeier
--Frank discussions in HS newspapers
*1967: Dickey v. AL State Board of Education
--College newspapers’ right to autonomy
*1997: Kincaid v. Gibson
--College yearbooks can be confiscated
Censorship guidelinesfor high school media
*Public or private school? Few rights at private schools or universities
*School sponsored?
*Unsupervised extra-curricular activity?
*Produced and distributed off-campus with no campus assistance?
*My question: What about Internet?
Reasons given for censoringcollege & university media
1. Disruption of the school, including anything that interferes with the image the school wishes to project
2. Protection of students from offensive speech, especially racist speech or that insensitive to ethnic minorities
3. Ensuring that the ideas or views in publications are not attributed to the school itself
Creative ways administrators punish student media
*Reduce or eliminate financial support
--1983: Stanley v. McGrath
*Pull publications from racks
*Fire newspaper staff
*Close files, especially police reports
--1991: Student Press Law Center v. Alexander
Acceptable criteria: p. 94
Acceptable criteria to usewhen censoring HS media
*Stories or photos that substantially interfere with the requirements of appropriate school discipline
*Material that interferes with the rights of students
*Material that fails to meet standards of academic propriety
*Material that generates health and welfare concerns
*Matters that are obscene, indecent or vulgar
Creative logic used when controlling student media
*To "protect" students from racist or any other "offensive" language
*To protect university’s image
*Crime statistics are educational data
*To protect students from alcoholism & sex
*To minimize "disruption" of education
*To distance school from ideas or beliefs
What about university media?
*Hosty v. Carter (2003)
--The Innovator (campus newspaper in Illinois) needed to be approved by administrators
--Why? Maybe because they had previously published articles critical of faculty members?
*Opinion: "Hazelwood’s rationale for limiting the First Amendment rights of high school journalism students is not a good fit for students at colleges or universities."
Guidelines for college media
*The more involved administrators are in publication, the more liable they are
*Pulling funding is identical to censorship
*There is no such thing as an "independent" college newspaper
*Media boards should NOT be run by administrators
*Adviser should advise, not dictate
Book banning in schools: Most common reasons given
1. Sexual content
2. Offensive language
3. Unsuited to age group
4. Occult/satanism
5. Violence
6. Homosexuality
7. Promoting religion
8. Nudity
9. Racism
10. Sex education
11. Anti-family
A few commonly banned books:
*Several Judy Blume books
*Oliver Twist
*The Grapes of Wrath
*The Harry Potter series
*Catching Alice
*Goosebumps series
*Roll of Thunder, Hear My Cry
*Julie of the Wolves
*The Chocolate War
*The Diary of Anne Frank
*Catch-22
*Where the Sidewalk Ends
Only one S. Ct. Ruling on Book Banning -- Local rule rules
*Pico v. Island Trees (1979) (5-4 ruling)
*Books can be banned for being "persuasively vulgar" or "educationally unsuitable" but not because the school board disapproves of the political ideas or philosophies expressed in the books.
*Court failed to provide clear guidance
A local attempt at book banning:
Plainsong, by Kent Haruf, 1999
*National Book Award Finalist
*"So foursquare, so delicate and lovely. . .it has the power to exalt the reader." ~NY Times Book Review
*See Louise’s op-ed piece
*Parents of students in Bemidji public schools argued before school board that it should be banned
Beyond Content: Restrictions of Time, Place and Manner
*Content neutral
--Must apply equally to all messages, although not necessarily to all categories, AND
*No complete ban (polling places)
--Must be alternative means for message, AND
*Substantial state interest at stake
--Aesthetics & nuisance concerns not enough, AND
*Narrowly tailored rules must apply
--Must not ban more than is necessary
Not free speech, but pizza box ban is instructive (ask me)
Public Forums & Free Speech
*Traditional Public Forum (most protected)
--Street corners, parks, public plazas, etc.
*Designated Public Forum (Changing!)
--Fairgrounds, community meeting hall, etc.
*Public Property but not Public Forum
--Prisons, military bases, airport boarding areas
*Private Property (least protected)
--Shopping malls, residences
What about signs,vendors, air?
*1988: Lakewood v. Plain Dealer Pub. Co.
--Mayor can’t reject some permit requests
*1981: Metromedia v. San Diego
--Billboard ordinances must be content-neutral
*1981: Muir v. Alabama Ed. Commission
--Can’t tell public TV what to show
*1997: Loving v. Boren
--Univ. computer system NOT a public forum
Nonpublic or private forums
*1943: Martin v. City of Struthers
--Can’t prohibit Jehovah’s Witnesses from ringing your doorbell
*1976: Hudgens v. NLRB
--Mall is not a public forum unless it takes on all the attributes of a traditional public forum, such as a town square
--BUT. . .states can expand civil liberties beyond what the U.S. Constitution requires as minimal
Significant public forum cases
*1939: Schneider v. New Jersey
--Free speech more important than clean streets
*1978: Intl’ Soc. For Krishna Consciousness v. Wolke
--Is an airport terminal a public forum? Concourse?
*1981: Heffron v. International Soc.
--Hare Krishnas can mingle but not confront
New prior restraint issues
*Simon & Schuster, Inc. v. New York Crime Victims Board (1991)
--And other Son of Sam laws
*Aimed at convicted criminals to prevent them from profiting from books or other media about their crimes
--Unconstitutional -- content-based
--Served a compelling state interest but not narrowly tailored
Prior restraint and protests
*City of Ladue v. Gilleo (1994)
--You may post signs on your own property (hurray!)
*A 30-ft. buffer zone around abortion clinics and homes of staff is constitutional, but not a 300-ft. zone (banning protesters)
*McIntyre v. Ohio Elections Commission (1995)
--Anonymous campaign literature is okay
Hate Speech/Fighting Words
*Chaplinsky v. New Hampshire (1942)
*"fighting words" doctrine
--Those that have a tendency to cause acts of violence by the person to whom, individually, the remark is addressed -- but not protected speech, and must be carefully drawn.
*Village of Skokie v. National Socialist Party (1978)
--Must compel a confrontation
*St. Paul cross-burning ordinance
--Intimidation is the key
*Speech codes on campuses and public schools
--Rude or discourteous speech cannot be made illegal
First Amendment and election campaigns
*Buckley v. Valeo (1976)
--Limiting what can be spent on campaigns is unconstitutional
--But limits on contributions may be okay
*Bipartisan Campaign Finance Reform Act (2002)
--Political parties cannot accept "soft money"
--Corporations, unions and other interest groups cannot use soft money to pay for "electioneering communications" at certain times
--Limits on "hard money" are increased
*Most provisions upheld in McConnell v. FEC (2003)
The Info Superhighway
*Print media have the most "freedom"
*Over-the-air broadcasters have the least
*Cable TV is somewhere in the middle
*Few limits on telephones
--Why? Capacity, tradition, pervasiveness or invasiveness of medium, accessibility of medium
*Reno v. American Civil Liberties Union (1997)
--Internet deserves the highest form of protection, the same as newspapers, books, other print media
--No tradition of censorship in cyberspace
Subtle shift in emphasis
"In the late 18th c. freedom of expression was designed to protect the rights of the speaker...Scholars argue that it is the protection of the public’s right to know or society’s right to be informed that today is the central value in the First Amendment...When society’s interests are put ahead of those of the speaker or publisher, substantially more censorship will be tolerated..."
Wednesday, September 14, 2005
Communication Law
A few contemporary problems: Who’s right? You decide!
Mass Media Law, ‘05/’06
By Don Pember, Preface
A lot has changed since 1st edition in 1978
Major issues then:
*Development of libel law
*Newsgathering rights, protecting sources
Major issues now:
*Laws targeting video games and minors
*Infotainment industry (paparazzi, privacy, etc.)
*Access to government information (Patriot Act, etc.)
*Reporters and confidential sources
*Music file sharing
*Celebrities protecting their images
*Election campaign funding
*Press coverage of war
*Military tribunals and deportation hearings
*Questions relating to the Internet
*Other, non-governmental censorship
New York Times Reporter Jailed for Contempt 7/7/05
WASHINGTON -- Judith Miller, a reporter for The New York Times, was sent to jail yesterday for refusing to reveal the name of a confidential source to a grand jury probing the Bush administration's leak of an undercover CIA operative's name.
Elk Grove School District v. Newdow (2004)
An atheist doctor/lawyer/reverend in California sues his second-grade daughter’s school district for what is sometimes called “forced speech” for mandatory pledge of allegiance recitations in all classes.
FEC v. Beaumont (2003)
2002: Congress passed the most comprehensive campaign reform legislation since the mid-1970s, the Bipartisan Campaign Finance Reform Act. (p. 124)
*So-called “soft money” cannot be accepted by political parties
*interest groups cannot use soft money for electioneering communications
*contribution limits to candidates from individuals was raised.
Are these unacceptable limits on free speech? Can speech be bought and sold?
Cohen v. California (1971)
A young man wears a jacket inside the courthouse. On the back of the jacket are the words “Fuck the Draft.” He is arrested for disturbing the peace and offensive conduct.
Alexander v. Minneapolis (1991)
A Minneapolis ordinance was designed to force adult bookstores and theaters into the city’s central business district. It was a small area with high real estate value. Ferris Alexander sued the city, claiming that having so few options for his businesses deprived him of his First Amendment rights.
Tinker v. Des Moines School District (1969)
Mary Beth Tinker, age 13, and her friend wear black armbands with peace signs to school. The next day, Mary Beth’s brother wears a similar armband to school. They are suspended. Mary Beth sues the school district, saying her free speech rights were abridged.
Studelska v. Bemidji State University (1991)
The editor of BSU’s Northern Student requests crime reports from campus security. All the reports she receives have been heavily edited. The reason given is for student privacy. Such information is “educational data,” say administrators. The editor sues the university for denying her First Amendment right to have access to public data.
Steele v. City of Bemidji (1998) (The Northern Herald)
An alternative newspaper publisher is told he cannot distribute his newspaper near the Paul Bunyan Mall because he is standing on MnDOT property. He also cannot distribute near the Post Office because he’s obstructing traffic. He sues the City of Bemidji for $600,000,000,000 (that’s billion!).
Abington School District v. Schempp (1963)
The PA legislature voted in 1959 that “ten verses from the Holy Bible shall be read” every day in each public school. Students could be excused on a written request from their parents. In Abington Sr. High, the Bible reading was followed by the Lord’s Prayer. Roger and Donna Schempp (students) were Unitarians, a church which rejected the Trinity. They sued the school district for the establishment of a religious belief.
Barnes v. Glen Theatre, Inc. (1991)
Darlene Miller was a “go-go” dancer at the Kitty Kat Lounge in South Bend, Indiana, and Gayle Sutro danced in a coin-operated booth at the nearby Chippewa Bookstore. Both women were forced by Indiana’s “public indecency” law to wear “pasties” and “G-strings.” They felt that shedding their skimpy costumes and dancing nude would encourage patrons to spend more on drinks and tips. They sued, saying Indiana law infringed on their freedom to express an erotic message.
Hazelwood School Distr. v. Kuhlmeier (1988)
The editors of the Spectrum, the newspaper of Hazelwood High School in St. Louis, submitted two articles to their journalism teacher. They were about divorce and teen pregnancy. The principal ordered the teacher to pull the articles. The editors sued for infringing on their First Amendment rights.
New York Times Co. v. Sullivan (1964)
In 1960, the New York Times published a full-page ad soliciting funds to pay legal expenses of civil rights protesters in the South. The police commissioner of Montgomery Alabama, sued for libel because of minor factual errors in the ad about actions of his and other law enforcement officials.
R.A.V. v. City of St. Paul (1992)
Russell and Laura Jones awoke early one morning to find a cross burning in their front yard. The Jones family was black and had moved into a mostly white neighborhood. The perpetrators were arrested and charged under St. Paul’s “hate crimes” ordinance. One of them sued, challenging the law as a content-based violation of the First Amendment.
Mass Media Law, ‘05/’06
By Don Pember, Preface
A lot has changed since 1st edition in 1978
Major issues then:
*Development of libel law
*Newsgathering rights, protecting sources
Major issues now:
*Laws targeting video games and minors
*Infotainment industry (paparazzi, privacy, etc.)
*Access to government information (Patriot Act, etc.)
*Reporters and confidential sources
*Music file sharing
*Celebrities protecting their images
*Election campaign funding
*Press coverage of war
*Military tribunals and deportation hearings
*Questions relating to the Internet
*Other, non-governmental censorship
New York Times Reporter Jailed for Contempt 7/7/05
WASHINGTON -- Judith Miller, a reporter for The New York Times, was sent to jail yesterday for refusing to reveal the name of a confidential source to a grand jury probing the Bush administration's leak of an undercover CIA operative's name.Elk Grove School District v. Newdow (2004)
An atheist doctor/lawyer/reverend in California sues his second-grade daughter’s school district for what is sometimes called “forced speech” for mandatory pledge of allegiance recitations in all classes.
FEC v. Beaumont (2003)
2002: Congress passed the most comprehensive campaign reform legislation since the mid-1970s, the Bipartisan Campaign Finance Reform Act. (p. 124)
*So-called “soft money” cannot be accepted by political parties
*interest groups cannot use soft money for electioneering communications
*contribution limits to candidates from individuals was raised.
Are these unacceptable limits on free speech? Can speech be bought and sold?
Cohen v. California (1971)
A young man wears a jacket inside the courthouse. On the back of the jacket are the words “Fuck the Draft.” He is arrested for disturbing the peace and offensive conduct.
Alexander v. Minneapolis (1991)
A Minneapolis ordinance was designed to force adult bookstores and theaters into the city’s central business district. It was a small area with high real estate value. Ferris Alexander sued the city, claiming that having so few options for his businesses deprived him of his First Amendment rights.
Tinker v. Des Moines School District (1969)
Mary Beth Tinker, age 13, and her friend wear black armbands with peace signs to school. The next day, Mary Beth’s brother wears a similar armband to school. They are suspended. Mary Beth sues the school district, saying her free speech rights were abridged.
Studelska v. Bemidji State University (1991)
The editor of BSU’s Northern Student requests crime reports from campus security. All the reports she receives have been heavily edited. The reason given is for student privacy. Such information is “educational data,” say administrators. The editor sues the university for denying her First Amendment right to have access to public data.
Steele v. City of Bemidji (1998) (The Northern Herald)
An alternative newspaper publisher is told he cannot distribute his newspaper near the Paul Bunyan Mall because he is standing on MnDOT property. He also cannot distribute near the Post Office because he’s obstructing traffic. He sues the City of Bemidji for $600,000,000,000 (that’s billion!).
Abington School District v. Schempp (1963)
The PA legislature voted in 1959 that “ten verses from the Holy Bible shall be read” every day in each public school. Students could be excused on a written request from their parents. In Abington Sr. High, the Bible reading was followed by the Lord’s Prayer. Roger and Donna Schempp (students) were Unitarians, a church which rejected the Trinity. They sued the school district for the establishment of a religious belief.
Barnes v. Glen Theatre, Inc. (1991)
Darlene Miller was a “go-go” dancer at the Kitty Kat Lounge in South Bend, Indiana, and Gayle Sutro danced in a coin-operated booth at the nearby Chippewa Bookstore. Both women were forced by Indiana’s “public indecency” law to wear “pasties” and “G-strings.” They felt that shedding their skimpy costumes and dancing nude would encourage patrons to spend more on drinks and tips. They sued, saying Indiana law infringed on their freedom to express an erotic message.
Hazelwood School Distr. v. Kuhlmeier (1988)
The editors of the Spectrum, the newspaper of Hazelwood High School in St. Louis, submitted two articles to their journalism teacher. They were about divorce and teen pregnancy. The principal ordered the teacher to pull the articles. The editors sued for infringing on their First Amendment rights.
New York Times Co. v. Sullivan (1964)
In 1960, the New York Times published a full-page ad soliciting funds to pay legal expenses of civil rights protesters in the South. The police commissioner of Montgomery Alabama, sued for libel because of minor factual errors in the ad about actions of his and other law enforcement officials.
R.A.V. v. City of St. Paul (1992)
Russell and Laura Jones awoke early one morning to find a cross burning in their front yard. The Jones family was black and had moved into a mostly white neighborhood. The perpetrators were arrested and charged under St. Paul’s “hate crimes” ordinance. One of them sued, challenging the law as a content-based violation of the First Amendment.
Student Records and Privacy – What Faculty and Staff Need to Know
Kris Kaplan
Assistant General Counsel
Minnesota State Colleges and Universities
Office of the Chancellor
Bemidji State University
January 2005
************************
It’s the Law
*The federal Family Educational Rights and Privacy Act (FERPA) and Minnesota Government Data Practices Act (MGDPA) govern how state universities handle data on individually identifiable students, i.e., "education data/records."
*All university employees are responsible to protect the privacy of education records in their possession.
*Willful violations may result in institutional liability or individual sanctions.
It’s the Right Thing to Do
*Respecting Student Privacy
*Demonstrates integrity
*Sensitivity to students as individuals and their rights
*Instills confidence
What is an Education Record?
*Broader than you may think:
--All information created, collected, maintained or disseminated by university on individually identifiable student(s)
--in any tangible form or media
--wherever located.
*Examples: enrollment records, (including internships, study abroad), grades, schedules, electronic document or e-mail, class list, financial aid information, application information, photos, notes taken during advising session, discipline, work study records and more . . .
What’s Not an Education Record?
*Several exceptions in law:
--Sole possession notes of instructor, so long as not shared with anyone other than a substitute instructor, and destroyed at end of term.
--Medical treatment records of university health care professionals so long as not shared with others not providing treatment.
--Solely personal information or observations not recorded or derived from education record.
Other laws may apply – and always: common sense(itivity).
Education Records are Presumed Private
*Private generally means:
--Access by student subject (10 days)
--Access by "school officials" who have "legitimate educational interest"
--Access by third parties if signed, written consent of student or other legal authority
Who?
*"School officials" include employees, agents of the university, student workers and others who need data to perform assigned university work, i.e., have a "legitimate educational interest."
*Third parties include: parents, union, media, spouses, potential employers, law enforcement, other schools, other students – and "others".
Directory Data is Public
*Directory Data is defined at BSU:
--Name; address; e-mail address; phone #
--Major and minor fields of study
--FT, PT status
--Student classification (sophomore, junior, etc.)
--Dates of attendance and graduation
--Participation in official activities, sports
--Degrees, awards, academic recognition and licenses received; associated names of parents
*Public data must be released upon request, but procedures are important.
Some Data is Always Private
*Directory information NEVER includes:
--SSN; Student ID Number
--Race, ethnicity, nationality, religion
--Gender
--GPA
*Remember default rule: if not public, is private.
Student Rights
*Access to education records on self (unless previously waived)
*To seek amendment of inaccurate, incomplete records
*To control disclosure, as permitted by law
*To file complaint with Department of Education
*All university students have same rights regardless of age.
Student Rights to Control Disclosure
*May suppress directory data (includes classroom).
*Prior notice of compliance with subpoena (usually).
*Most disclosures to third parties require signed release that specifies information to be released, to whom, and for what purpose.
*Waiver of rights must be voluntary.
Third Party Disclosure Without Student’s Consent
*Permitted examples:
--Court order
--Health, safety emergency (narrow exception)
--Other schools where student intends to enroll or is enrolled
--USCIS for certain international student information
--Military recruiters for certain information
--Other . . .
Faculty and Staff Responsibilities
*Access/use education records only for legitimate educational purpose; i.e., "need-to-know." Not curiosity.
*Do not release any information from education records (including class schedules) unless:
--Directory data, not suppressed
--Written consent of student
--Other legal authority, as determined by designated college personnel
"Tennessen Notice/Warning"
*When collecting private data, inform:
--Why collecting – how used;
--Who will have access;
--Whether legally required to provide;
--Consequences of providing or not.
--Goal is informed consent – need not be written, but easiest on forms. Don’t forget electronic collection.
*Tip: don’t ask for private data (especially SSNs) unless required.
*Know campus resources
--DPCO: David Carlson
--Directory data definition, how to check for suppression (see registrar)
--Refer public requests to Communications/Public Affairs
--Consult with and follow IT staff policies on privacy, security of electronic data.
http://www.ogc.mnscu.edu/
Privacy Practices
*Don’t:
--Use any portion of SSN or student ID to post grades or other information;
--Allow access to graded materials by students other than subject;
--Improperly disclose information derived from private education records (including oral disclosures);
--Allow public view of student data on computer screen;
--Allow family members to use college computer resources;
--Disclose class lists or schedules unless authorized;
--Download unauthorized software or circumvent other privacy or security measures for electronic resources.
*But DO know who to call for help – or refer.
Test Your FERPA IQ
How would you handle the following situations?
*Parent comes to business office to pay child’s tuition and wants to know the balance.
*Parent asks whether child has been in class since last week.
*Parent calls supervisor or student worker and wants to know why she isn’t at work.
*Media requests information about former student who just won local election.
*What if request is only for "personal opinions" – not grades?
*Newspaper requests graduation rate of Hispanic students from St. Paul.
*Police officers demand student’s class schedule to serve arrest warrant.
*For criminal investigation, law enforcement asks for list of students in Computer Language class.
--Would it matter if she provided a subpoena?
--What if the request came from campus security?
*Faculty passes around class list and asks students to provide e-mail address for class communication.
--Ok to share with other students?
--Ok for instructor to communicate with students by e-mail?
*Instructor gives Registrar’s Office list of students in her "Advanced Programming" course and asks for their grades in "Beginning Programming."
*Expanding computer company wants names and addresses of all female computer science majors for their affirmative action recruiting.
*Student requests copy of transcript of school from which he transferred last spring.
*Student requests review of admissions file, including letters of reference.
*Faculty advisor for Spanish Club ask Registrar for names of all students enrolled in Spanish I.
--Spanish majors?
--Hispanic students?
*HS counselor requests grades of PSEO students from his school.
*Parent requests grades of 17 year-old son attending as PSEO student.
*Staff reports seeing students fighting in hallway. He was interviewed for Conduct Code proceeding and wants to know outcome. What if complainant was student?
*May a department share class lists and point out troublesome students to each other?
*Faculty requests information from financial aid on students who have defaulted on loans?
*Faculty requests list from Registrar of students who are on academic probation?
*Credit card company asks for list of names of all business major students.
--List of all students enrolled in Accounting 202?
--List of all Computer Science majors with GPA of 3.7 or higher?
*Student calls over semester break to request grades. E-mail?
*Employer calls to request grades of employee who is student – employer is paying tuition.
*Student asks instructor for employment reference – FERPA issues?
--Would it matter if request is in writing?
--Naming faculty on application form?
--by phone? By FAX? By e-mail?
--Can you require waiver of ability to review?
--If your only knowledge about the student comes from extra-curricular activities, is FERPA a concern?
*Student asks for her mid-term exam so she can see what she needs to focus on for the final. Instructor refuses because she re-uses exam questions and doesn’t want copies in circulation. Correct?
--What if student wants copies of instructor’s notes re: classroom participation?
*Colleague asks you about performance of student last year in Calculus I – colleague says student is struggling in her Calculus II class. Luckily, you have saved your notes and provide them to your colleague, since you no longer need them. Student now demands to see them – you refuse.
*Instructor asks disability services for medical update on student who seems to be having more difficulty with speech.
*Instructor asks counseling services to verify student attended appointment last week (missing mid-term).
*Parent needs explanation of health service charge for insurance coverage.
*Football coach calls instructors to request mid-term grades of student athletes.
*Football coach holds press conference to announce disciplinary action against two well-known players and results of knee surgery on quarterback.
*You would like to begin to submit all your students’ essays to a plagiarism detection program – others in your department question whether this violates FERPA?
Responding to Requests for Private Data
"I’m sorry but that information is private under the law. If you would like further information about how to access student information, or to obtain a release form, please contact --."
Advanced Issue: If student not enrolled or has suppressed: "I have no information on that individual." Use same response to avoid inadvertent disclosure of student status.
Assistant General Counsel
Minnesota State Colleges and Universities
Office of the Chancellor
Bemidji State University
January 2005
************************
It’s the Law
*The federal Family Educational Rights and Privacy Act (FERPA) and Minnesota Government Data Practices Act (MGDPA) govern how state universities handle data on individually identifiable students, i.e., "education data/records."
*All university employees are responsible to protect the privacy of education records in their possession.
*Willful violations may result in institutional liability or individual sanctions.
It’s the Right Thing to Do
*Respecting Student Privacy
*Demonstrates integrity
*Sensitivity to students as individuals and their rights
*Instills confidence
What is an Education Record?
*Broader than you may think:
--All information created, collected, maintained or disseminated by university on individually identifiable student(s)
--in any tangible form or media
--wherever located.
*Examples: enrollment records, (including internships, study abroad), grades, schedules, electronic document or e-mail, class list, financial aid information, application information, photos, notes taken during advising session, discipline, work study records and more . . .
What’s Not an Education Record?
*Several exceptions in law:
--Sole possession notes of instructor, so long as not shared with anyone other than a substitute instructor, and destroyed at end of term.
--Medical treatment records of university health care professionals so long as not shared with others not providing treatment.
--Solely personal information or observations not recorded or derived from education record.
Other laws may apply – and always: common sense(itivity).
Education Records are Presumed Private
*Private generally means:
--Access by student subject (10 days)
--Access by "school officials" who have "legitimate educational interest"
--Access by third parties if signed, written consent of student or other legal authority
Who?
*"School officials" include employees, agents of the university, student workers and others who need data to perform assigned university work, i.e., have a "legitimate educational interest."
*Third parties include: parents, union, media, spouses, potential employers, law enforcement, other schools, other students – and "others".
Directory Data is Public
*Directory Data is defined at BSU:
--Name; address; e-mail address; phone #
--Major and minor fields of study
--FT, PT status
--Student classification (sophomore, junior, etc.)
--Dates of attendance and graduation
--Participation in official activities, sports
--Degrees, awards, academic recognition and licenses received; associated names of parents
*Public data must be released upon request, but procedures are important.
Some Data is Always Private
*Directory information NEVER includes:
--SSN; Student ID Number
--Race, ethnicity, nationality, religion
--Gender
--GPA
*Remember default rule: if not public, is private.
Student Rights
*Access to education records on self (unless previously waived)
*To seek amendment of inaccurate, incomplete records
*To control disclosure, as permitted by law
*To file complaint with Department of Education
*All university students have same rights regardless of age.
Student Rights to Control Disclosure
*May suppress directory data (includes classroom).
*Prior notice of compliance with subpoena (usually).
*Most disclosures to third parties require signed release that specifies information to be released, to whom, and for what purpose.
*Waiver of rights must be voluntary.
Third Party Disclosure Without Student’s Consent
*Permitted examples:
--Court order
--Health, safety emergency (narrow exception)
--Other schools where student intends to enroll or is enrolled
--USCIS for certain international student information
--Military recruiters for certain information
--Other . . .
Faculty and Staff Responsibilities
*Access/use education records only for legitimate educational purpose; i.e., "need-to-know." Not curiosity.
*Do not release any information from education records (including class schedules) unless:
--Directory data, not suppressed
--Written consent of student
--Other legal authority, as determined by designated college personnel
"Tennessen Notice/Warning"
*When collecting private data, inform:
--Why collecting – how used;
--Who will have access;
--Whether legally required to provide;
--Consequences of providing or not.
--Goal is informed consent – need not be written, but easiest on forms. Don’t forget electronic collection.
*Tip: don’t ask for private data (especially SSNs) unless required.
*Know campus resources
--DPCO: David Carlson
--Directory data definition, how to check for suppression (see registrar)
--Refer public requests to Communications/Public Affairs
--Consult with and follow IT staff policies on privacy, security of electronic data.
http://www.ogc.mnscu.edu/
Privacy Practices
*Don’t:
--Use any portion of SSN or student ID to post grades or other information;
--Allow access to graded materials by students other than subject;
--Improperly disclose information derived from private education records (including oral disclosures);
--Allow public view of student data on computer screen;
--Allow family members to use college computer resources;
--Disclose class lists or schedules unless authorized;
--Download unauthorized software or circumvent other privacy or security measures for electronic resources.
*But DO know who to call for help – or refer.
Test Your FERPA IQ
How would you handle the following situations?
*Parent comes to business office to pay child’s tuition and wants to know the balance.
*Parent asks whether child has been in class since last week.
*Parent calls supervisor or student worker and wants to know why she isn’t at work.
*Media requests information about former student who just won local election.
*What if request is only for "personal opinions" – not grades?
*Newspaper requests graduation rate of Hispanic students from St. Paul.
*Police officers demand student’s class schedule to serve arrest warrant.
*For criminal investigation, law enforcement asks for list of students in Computer Language class.
--Would it matter if she provided a subpoena?
--What if the request came from campus security?
*Faculty passes around class list and asks students to provide e-mail address for class communication.
--Ok to share with other students?
--Ok for instructor to communicate with students by e-mail?
*Instructor gives Registrar’s Office list of students in her "Advanced Programming" course and asks for their grades in "Beginning Programming."
*Expanding computer company wants names and addresses of all female computer science majors for their affirmative action recruiting.
*Student requests copy of transcript of school from which he transferred last spring.
*Student requests review of admissions file, including letters of reference.
*Faculty advisor for Spanish Club ask Registrar for names of all students enrolled in Spanish I.
--Spanish majors?
--Hispanic students?
*HS counselor requests grades of PSEO students from his school.
*Parent requests grades of 17 year-old son attending as PSEO student.
*Staff reports seeing students fighting in hallway. He was interviewed for Conduct Code proceeding and wants to know outcome. What if complainant was student?
*May a department share class lists and point out troublesome students to each other?
*Faculty requests information from financial aid on students who have defaulted on loans?
*Faculty requests list from Registrar of students who are on academic probation?
*Credit card company asks for list of names of all business major students.
--List of all students enrolled in Accounting 202?
--List of all Computer Science majors with GPA of 3.7 or higher?
*Student calls over semester break to request grades. E-mail?
*Employer calls to request grades of employee who is student – employer is paying tuition.
*Student asks instructor for employment reference – FERPA issues?
--Would it matter if request is in writing?
--Naming faculty on application form?
--by phone? By FAX? By e-mail?
--Can you require waiver of ability to review?
--If your only knowledge about the student comes from extra-curricular activities, is FERPA a concern?
*Student asks for her mid-term exam so she can see what she needs to focus on for the final. Instructor refuses because she re-uses exam questions and doesn’t want copies in circulation. Correct?
--What if student wants copies of instructor’s notes re: classroom participation?
*Colleague asks you about performance of student last year in Calculus I – colleague says student is struggling in her Calculus II class. Luckily, you have saved your notes and provide them to your colleague, since you no longer need them. Student now demands to see them – you refuse.
*Instructor asks disability services for medical update on student who seems to be having more difficulty with speech.
*Instructor asks counseling services to verify student attended appointment last week (missing mid-term).
*Parent needs explanation of health service charge for insurance coverage.
*Football coach calls instructors to request mid-term grades of student athletes.
*Football coach holds press conference to announce disciplinary action against two well-known players and results of knee surgery on quarterback.
*You would like to begin to submit all your students’ essays to a plagiarism detection program – others in your department question whether this violates FERPA?
Responding to Requests for Private Data
"I’m sorry but that information is private under the law. If you would like further information about how to access student information, or to obtain a release form, please contact --."
Advanced Issue: If student not enrolled or has suppressed: "I have no information on that individual." Use same response to avoid inadvertent disclosure of student status.
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