Higher Education Law Report
'The Fountain Hopper' – The Latest Example of Student FERPA Activism
January 19, 2015
Last week, an anonymous Stanford University publication called The Fountain Hopper gained the attention of not only Stanford students, but admissions officers nationwide, when it disseminated a communication encouraging students to demand access to their purportedly confidential admissions files pursuant to the federal Family Educational Rights and Privacy Act (FERPA). Published accounts indicate that as many as 700 Stanford students have submitted such inspection requests, and other institutions are beginning to receive them as well. Though institutions have always been aware that FERPA provides students a right of inspection, this is the latest example of a circumstance in which the statute may require disclosure of information that institutional personnel have assumed to be confidential. FERPA affords students the right to inspect and review their "education records." The term "education records” is very broad, and, subject to certain exceptions, includes information recorded in any form that is directly related to an identifiable student. Of particular relevance to the Fountain Hopper initiative, there is no blanket exemption for admissions records and, accordingly, a student will have the right to inspect and review them unless a particular exception applies. There are at least two specific exceptions that could, potentially, narrow the scope of admissions records that must be made available in response to an inspection demand. First, although considered "education records," letters of recommendation are not available for inspection if the student has prospectively waived, in writing, his or her right to review them (as, for example, may occur in the Common Application). Second, the term "education records" does not include personal notes of an institutional employee, provided that the notes are made and kept by the employee solely for use as a personal memory aid, and are not accessible or revealed to anyone else, other than a temporary substitute for the employee. Of course, this exception likely will not apply to most evaluative notes typically made by admissions officers, because those notes are placed in applicant files and available to other admissions personnel. However, if individual admissions officers keep separate personal notes and do not reveal them further, those notes would not be subject to review. A few related considerations:
? FERPA is not a records retention statute. As a result, institutions are free to promulgate their own retention and destruction policies for admissions files, and FERPA does not prohibit an institution from destroying the admissions file of an admitted student at the time of enrollment (or a specified time thereafter), provided that the student has not previously demanded inspection of the file. (FERPA’s implementing regulations explicitly provide that an institution “shall not destroy any education records if there is an outstanding request to inspect and review the records.”) Of course, any retention/destruction policy must consider all of the relative benefits and risks of retaining or destroying the records to which they pertain.
? FERPA’s inspection right applies only to students who are, or have been, in attendance at an institution. Among other things, this means that students who were denied admission to an institution, or who were offered admission but never attended the institution, need not be provided the opportunity to inspect that institution’s admissions file on them.
? Finally, the inspection right granted by FERPA is just that – a right to “inspect.” Unless an institution has otherwise committed to doing so (e.g., by way of institutional policy), it is not required to provide copies of records to a student unless the failure to do so would effectively preclude the student’s ability to review the records (for example, because the student is geographically remote). Even then, an institution may satisfy its obligation by making alternate arrangements for inspection and review (for example, by finding a location proximate to the student’s place of residence at which records will be made available).