In one instance, the sheriff contacted the university after a student applied for a gun permit. The associate dean's office spoke with the student's academic adviser, who “expressed concerns about (the student’s) fixation on issues.” The dean's office described the applicant as "a bit standoff-ish ... after failure. . . . Specifically, the student firmly believes they will get into (an academic program), but the grades are nowhere close to admission standards. He has had very poor academic performance." This information was all relayed back to the sheriff's office.
After the story broke last month, the UI acknowledged it had possibly violated the Family Educational Rights and Privacy Act (FERPA), and would immediately discontinue the practice. The UI had been relying on broad privacy waivers that gun permit applicants are required to sign in that county. However, FERPA privacy waivers must specify what school information is being shared. In this case, the applicants did not specifically authorize the UI to disclose education-related information in connection with the application. The best part though is that the University has admitted it never even looked at the privacy waivers anyway, and did not have a policy on this in place. Because FERPA applies only to students, there is no FERPA problem with the UI's practices as they pertain to faculty and staff. As for the students, the UI is currently consulting with the Department of Education.
Obviously, the UI has done this to forestall school shootings. This practice started after a graduate student fatally shot three professors, the associate vice president of academic affairs, and a student on campus in 1991. And the Cedar Rapids Gazette wrote that "Virginia Tech officials were criticized in 2007 for not sharing information about the mental health history of a student who fatally shot 32 people and wounded 17 others on campus. A federal report on the massacre showed educators, mental-health providers and police often don’t share information for fear of violating overlapping privacy laws . . . ."
But in 1991, Iowa sheriffs had broad discretion to grant gun permits. The Iowa General Assembly in 2011 restricted the reasons for which a sheriff can deny a permit. The information-sharing process at the UI appears not to have evolved with the law.
The upshot, in my view, is that the university should get a formal policy in place, and that policy should only let the UI disclose information when that information could even affect a law enforcement decision. Also, given what the UI's laudable goals here, it should coordinate with the sheriff's office to have specific privacy waivers signed by applicants for gun permits to avoid violating FERPA again (and to not lose federal funding for doing so). Alternately, aggrieved students could lobby the State to prohibit such disclosure regardless-- the harm is dubious with the redactions made in the open-records request, but of course some non-PII turn out to be identifiable once they get out into the world.
At the same time, maybe Congress should amend FERPA. If someone poses a genuine threat to public safety, and he's a UI professor, FERPA does not prevent the UI from disclosing his information to the sheriff. If that same person is a student, the UI must stay silent. FERPA makes good privacy sense in a lot of contexts, but what good does the above distinction do public safety?
What a fascinating issue. The idea that application for a gun permit waives your right to privacy to your educational records pursuant to FERPA seems like it has some major Second Amendment and privacy issues and obviously runs into FERPA problems. FERPA's provisions allow for disclosure of FERPA-protected information "To comply with a judicial order or lawfully issued subpoena," to "appropriate officials in cases of health and safety emergencies, and to "state and local authorities, within a juvenile justice system, pursuant to specific State law." It would appear that UI has already decided that its practices did not fall within any of these spheres, and I would tend to agree.
ReplyDeleteSteve, would your recommendation for FERPA mean broadening the definition of what can be released for "law enforcement purposes"? That seems like a slippery slope, I fear. But then again, if background checks are constitutional, perhaps it wouldn't run afoul of the Constitution for Congress to say that FERPA-protected information can also be used for that purpose. I suppose it has a great deal to do with how courts read any right to privacy in firearms purchases into the Second Amendment (or apply existing constitutional privacy rights).
Cassie, those are really good points—and I hadn’t even thought of any Second Amendment issues with holding someone’s educational performance against them when it came to firearm licensing.
ReplyDeleteWhat I suggest for FERPA is clarifying what constitutes a health and safety emergency. Applying for a gun permit might not constitute such an emergency, but if the university strongly suspects that someone is unbalanced enough that their having the ability to procure a gun will cause an emergency later, I personally think that information should make its way to the county sheriff. While it is true that schools can disclose FERPA-protected information in cases of “health and safety emergencies,” the Department of Education emphasizes that such disclosures:
"do not include disclosures to address the threat of a possible or eventual disaster or other emergency for which the likelihood of occurrence is unknown, such as would be addressed in emergency preparedness activities. As explained previously, disclosures made under the health or safety emergency provision must be ‘in connection with an emergency,’ which means to be related to the threat of an actual, impending, or imminent emergency, such as a natural disaster, a terrorist attack, a campus shooting, or the outbreak of an epidemic disease."
Is a disclosure related to a gun permit application “in connection with an emergency”? The DOE gives the specific example of a campus shooting, but on the other hand, perhaps applying for the gun permit is too far upstream to qualify as “actual, impending, or imminent.” I guess the bottom line is, I spoke too hastily in saying Congress should be the one doing something—I think DOE should clarify whether gun permit applications are closely enough related to a potential school shooting where the school can disclose the information. Otherwise, schools are between a legal rock and a hard place. (The University of Iowa apparently chose safety over privacy, and now faces the possibility, however remote, of losing federal funding for violating FERPA.) My own preference would be for DOE to err on the side of disclosure.
By doing so, DOE would help erode the dispositive distinction of “faculty and staff” v. “students,” where the university can disclose information about its faculty, but not its students, to outside law enforcement without running afoul of FERPA. After discussing this issue with Pari, I learned that disclosing mental health-related records on faculty and staff could still very well be an ADA problem, though the EEOC takes a much more expansive view of what’s a mental health record than do federal courts. I’d still argue that students are afforded more robust protection overall from disclosure to outside law enforcement agencies, but the rules regarding gun permit application disclosures should be clarified for faculty and staff to produce a consistent privacy and safety regime within the setting of higher education (as in, the ability to disclose shouldn't hinge as much on the type of information). I welcome dissenting thoughts.
I agree--a clarification of a health and safety emergency would be helpful. As we discussed in class today, the NY SAFE Act, in a similar vein, increased reporting requirements related to firearm possession for mental health providers, to the chagrin of many providers. That line between safety and privacy seems to be one we are really working out in America right now, and where we'll land will be interesting. I still look at this and worry about the Second Amendment implications for the Hawkeye folks--but thinking about Second Amendment rights is certainly something we're not short on these days. I can imagine the mental health regulation arena could see some drastic changes that might expand into educational records.
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