When FERPA and the First Amendment Clash on Campus
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Does privacy outweigh the First Amendment on Campus? Lessons learned from AP v. NCAA was presented by Carol LoCicero during a panel on "Confidential Public Information. When FERPA and the First Amendment Clash on Campus" at Media and the Law's 24th Annual Seminar on May 6, 2011.
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When FERPA and the First Amendment Clash on Campus
- 1. When FERPA and the First Amendment Clash on Campus Lessons learned from AP v. NCAA Presented by Carol LoCicero
- 2. The Scandal Florida State University. 61 student athletes in an online music course. Widespread cheating. Academic fraud.
- 3. The Punishment NCAA stripped FSU of all wins in which the guilty athletes played. It was a sanction the university had not expected.
- 4. The Consequences Bowden v. Paterno Who would have the most wins to become the winningest coach in college football?* *With the sanctions, Bowden’s legacy was at risk.
- 5. The Appeal FSU doesn’t challenge its guilt. It challenges the punishment.
- 6. The media had access to the records until…
- 7. FSU – NCAA Sanctions Appeal “Cyber confidentially pact!” With the appeal, media requests to view the NCAA appellate brief are suddenly and shockingly denied.
- 8. “Such conduct shall be reported to the applicable state bar authorities…failure to adhere…could result in civil or criminal actions”
- 9. AP v. NCAA The fight for access to the records leaves us with no other alternative. On behalf of 27 media entities, Thomas & LoCicero filed suit against the NCAA, FSU and Gray Robinson (FSU’s attorneys)
- 10. We focused on the illegal custodial website
- 11. Public vs. Private If the NCAA got away with a custodial website, it would be a dangerous development.
- 12. FSU forced us to litigate FERPA.
- 13. “FERPA!” is invoked to shield a variety of university activities.
- 14. Is every record that mentions a student secret under FERPA? OR Does it have to be directly related to a student, and not just tangentially related to a student?
- 15. “…I believe that would rip the heart out of the NCAA.” - Samuel David Berst, Jr., Vice-President for Division I, NCAA Volume 1 of 2 | Transcript of Proceedings | August 20, 2009 Leon County Courthouse | Tallahassee, Florida (Describing the consequences if NCAA/FSU records were found to be public records…)
- 16. The Verdict 1. The records reviewed by FSU’s lawyers were public records. 2. The confidentiality agreement was void and didn’t shield the records. 3. They weren’t exempt student records.
- 17. The media was entitled to recover its attorneys’ fees from FSU and the NCAA. and…
- 18. Before invoking FERPA, make sure the record at issue really is directly related to a student.
- 19. Thank you. A copy of this presentation and documentation is available at slideshare.net/ThomasLoCicero
Editor's Notes
- Note – I’m looking for an image here. Fraternity paddle -
- !!!Play with layering custodial image on the polariod.But with the appeal, media access was suddenly & shockingly denied.
- ANIMATION:1. Highlighted - “such conduct shall be reported to the applicable state bar authorities....could result in civil or criminal actions.” and text box call out.2. Highlight the username, password on the doc and have the image of log-in come up.
- ADD IMAGE – ?custodial website from above?If the NCAA got away with a custodial website, it would be a dangerous development.When a private company is hired by taxpayers to carry out a government function, Florida law says records must available to the public. It was a scary concept. So much of what’s done on behalf of the citizens of the state would be made secret.
- Find Image – it’s all about privacy and student records. Collegiate looking person with duck tape on their mouth.
- The document was focused on university employees and their behavior, not directly on student academics. Our lawsuit was more about how the program was run – how student athletes were being helped to cheat.Anything involving students could be hidden. A lot of problem activity at university could be hidden under FERPA. This ruling helps change that. The dicotomy of directly vs. tangentially related to a student. If every time a students name is mentioned, a university can claim FERPA, they would be allowed to operate without public scrutiny.Look at idea of image of student in 2 directions or student asking question?
- The question becomes….
- The NCAA perspective – ***Find image - a courtroom photo here to highlight the drama.Make source much smaller.
- The records reviewed by FSU’s lawyers were public records. The confidentiality agreement was void and didn’t shield the records. They weren’t exempt student records. The media was entitled to recover it’s attorneys’ fees from FSU and the NCAA.
- ADD: Photo of checkPointing out it’s important not to overdo FERPA. To engage in that analysis of is it directly related or not, because in states that have attorney’s fees provisions, you’ll pay not only your lawyers, but the other sides. In addition to FSU paying Gray Robinson and NCAA paying their lawyers, they paid our fees.
- ADD: Image of a student transcript.
- End slide – or we could combine this closing slide and thank with the victory image from the slide above.