For some, information is power. For many others, it represents vulnerability. Information is more easily disseminated now, on a massive scale, than in any other time in our history. Not surprisingly, the price of privacy has become particularly high, especially when sensitive personal, professional, or educational information is involved.

The government and its access to the personal information of its citizens have become increasingly controversial topics over the past decade. With what seem to be daily revelations of the government’s seemingly limitless collection of and access to information, suspicion, and a collective lack of trust often describe the public’s uneasy sentiment regarding the government’s access to its citizens’ personal information. Yet, even with an unfathomably low opinion of the government’s procedures with respect to collecting and disseminating personal information, little has been done to bolster for that information.

Educational institutions, from elementary schools to universities, amass inestimable amounts of information concerning their students.^[1] In an effort to address schools’ considerable access to sensitive information regarding students and the risk to students in failing to have proper procedures to protect that information, the Family Educational Rights and Privacy Act (“FERPA”)^[2] was passed decades ago.^[3]

Recently, many have criticized the manipulation of FERPA’s provisions to thwart the public’s access to information in order to protect these educational institutions.^[4] Yet, where some provisions of FERPA may be used to improperly justify failing to disclose information relating to students, other terms lack the clarity to protect student information in circumstances where it should not be released. The exceptions which permit the disclosure of information, under FERPA, including, specifically, the subpoena disclosure provision fail to provide sufficient guidance to courts, abandoning them to make little more than an educated guess as to when they should order the release of protected information and when to secure that information from disclosure.

The failure to articulate clear conditions that govern when a court should release protected education records has created a muddled interpretive framework where some courts elect to balance a student’s privacy interests against the requesting party’s need to obtain the records, with other courts rejecting the claim that there are privacy interests conferred by the statute.

As is described throughout this article, Congress should amend the statute to provide a more robust interpretive framework for FERPA, clearly articulating a balancing test that governs the disclosure of education records in response to a lawfully issued subpoena. Without such amendment, FERPA will languish in the purgatory of poorly written laws, continuing to be unharmoniously applied be federal and state courts, inevitably leading not only to a byzantine progeny of interpretive case law but the violation of the student privacy interests that it was designed to protect.

In Part II of this article, I provide a brief background of FERPA and its purpose. In Part III, I discuss the subpoena disclosure provision of FERPA.^[5] In Part IV, I discuss and analyze the many courts, state and federal, that have considered the privacy interests implicated by FERPA in the face of requests for education records. In Part V, I discuss my recommendation that Congress amend FERPA to provide a clear articulation of the conditions under which a court should order disclosure of education records in response to a lawfully issued subpoena.

II. Background of FERPA

FERPA, also known as the Buckley Amendment in honor of its Senate sponsor James Buckley, is Spending Clause legislation enacted in 1974 as a floor amendment to a comprehensive education statute.^[6] Congress passed the so-called Buckley Amendment to “both protect the confidentiality of student records and to guarantee access to one’s own student records.”^[7]

FERPA is not a mandate.^[8] Instead, in order to receive federal funds, all schools must agree to comply with the terms of FERPA.^[9] One of FERPA’s requirements is that “[i]n general (and with more than dozen exceptions) schools cannot disclose education records or their contents to third parties without the written consent of the parent/adult student.”^[10] FERPA’s definition of “education records” is broad.^[11] Under FERPA, education records include:

            Those records, files, documents and other materials which

                        (1) contain information directly related to a student; and

                        (2) are maintained by an educational agency or institution or by a person acting                              for such agency or institution.^[12]

Although the breadth of records that are considered “education records” is almost limitless, FERPA expressly excludes some documents from the definition of education records, including the records of a school’s law enforcement unit.^[13] Indeed, significant scholarship has been dedicated to the question of what should constitute “education records” under FERPA.^[14]

In theory, in order the ensure schools’ compliance with FERPA’s conditions, funding would be denied to schools “that fail to properly handle students’ records.”^[15] However, this penalty is generally regarded as an unrealistic or even non-existent deterrent as “no institution has lost funding as a result of FERPA violations.”^[16] Some scholarship has focused on the mechanisms that govern the custody and release of “education records”.^[17] Yet, that analysis has focused on certain exceptions to the disclosure of “education records” under FERPA, such as those relating to health or safety emergencies.^[18] Little effort or attention has been directed to what has become a potential blind spot in FERPA’s disclosure restrictions: the lawfully issued subpoena exception.

III. FERPA’s Subpoena Disclosure Exception

FERPA embodies provisions that purport to limit the conditions under which a school can disclose education records, including pursuant to a “lawfully issued subpoena.”^[19] Under 34 C.F.R. 99.31, FERPA states:

            (a) An educational agency or institution may disclose personally identifiable information from an education record of a student without the consent required by 99.30 if the                     disclosure meets one or more of the following conditions:

                        (9)(i) The disclosure is to comply with a judicial order or lawfully issued  subpoena.

                        (ii) The education agency or institution may disclose information under paragraph  (a)(9)(i) of these section only if the agency or institution makes a reasonable effort to notify the parent or eligible student of the order or subpoena in advance of compliance, so that the parent or eligible student may seek protective action…

Accordingly, “some disclosures in connection with litigation and law enforcement are permitted” as “[s]chools may release records in response to federal grand jury and other subpoenas.”^[20] However, the specific language of FERPA itself does not delineate clear conditions for the disclosure of student records pursuant to a subpoena.^[21] “FERPA does not provide substantive protection of such records from subpoena, for example, by establishing a privilege for student records/student information, nor does it provide a standard or other substantive guidance to courts faced with motions to quash or modify subpoenas of student information.”^[22]

In light of a lack of statutory guidance, many courts, state and federal, have been compelled to interpret FERPA’s subpoena disclosure provision, often without harmony.^[23] Indeed, the inconsistencies within FERPA’s subpoena structure place courts in a precarious position, increasing the likelihood that they will order the release of education records in violation of a student’s privacy interests.^[24]

IV. The Balancing Test for Disclosure of Education Records

With respect to a subpoena requesting disclosure of student records from a school, it is often suggested that a reliable framework exists whereby “[c]ourts asked to enforce subpoenas first review the records to ensure relevancy, and then balance the student’s privacy interest with the subpoenaing party’s need for the records.”^[25]

Nevertheless, although this so-called “framework” is employed by some courts, it is far from uniformly applied and it is often disregarded altogether.^[26] Some courts use the balancing test to weigh the privacy interests implicated by FERPA.^[27] Some jurisdictions forego balancing any privacy interests and, instead, merely focus on the requirement in subsection (a)(9)(ii), above, regarding informing parents or students of the potential disclosure in response to a subpoena.^[28] Yet, other courts have rejected the concept that FERPA provides any privacy interests for students.^[29]

As will be illustrated in the next section, the lack of direction from Congress and the Supreme Court has left the lower federal courts and state courts without a reliable interpretive framework with which to govern the disclosure of education records in response to a lawfully issued subpoena.^[30]

V. Courts Interpreting FERPA’s Subpoena Disclosure Exception

In Rios v. Read, the court articulated a balancing test that weights a student’s privacy interests against a petitioner’s need for the requested education records. This balancing test represented a reasoned approach to manage the power of the subpoena mechanism in litigation, while respecting the privacy interests embodied in FERPA. However, the cases that followed Rios, reflect a progeny of decisions that fail to uniformly apply the elements of the balancing test and, in some cases, abandon it altogether, releasing student records without considering any confidentiality concerns.

            A. Rios v. Read articulates the balancing test for disclosure of FERPA records pursuant to a lawfully issued subpoena

Rios v. Read is one of the principal cases noted for the articulation of the balancing test used to balance the privacy interests contemplated by FERPA while considering a request for records through a lawfully issued subpoena.^[31] In Rios, the court, interpreting the legislative history of FERPA, noted that “the Congressional policy expressed in this provision places a significantly heavier burden on a party seeking access to student records to justify disclosure than exists with respect to discovery of other kinds of information, such as business records.”^[32]

Rios noted that Congress was concerned about “frequent, even systematic violations of the privacy of students.”^[33] The Rios Court pronounced that “[t]hese privacy violations are no less objectionable simply because release of the records is obtained pursuant to judicial approval unless, before approval is given, the party seeking disclosure is required to demonstrate a genuine need for the information that outweighs the privacy interest of the students.”^[34]

Rios precisely articulated the need for the FERPA-disclosure balancing test as a mechanism to protect privacy rights in the face of a lawfully issued subpoena.^[35] Though developed by a lone district court judge in the United States District Court for the Northern District of New York, the FERPA-Subpoena balancing test from Rios has been applied by many other federal district courts around the country.^36]

Yet, the balancing test itself was never incorporated directly into the statute nor has the Supreme Court held that the balancing test should apply to all courts considering the disclosure of education records in response to any lawfully issued subpoena.^[37] As such, many decisions that have followed Rios have failed to apply any balancing test to consider a student’s privacy interests when measured against the interests of those seeking protected education records through a lawfully issued subpoena.^[38]

            B. Federal Courts fail to uniformly adopt and apply the FERPA-Subpoena balancing test

Rios v. Read created a simple balancing test to apply when a court is faced with a subpoena to compel disclosure of FERPA protected education records. This test has been applied by other courts.^[39] Yet, its reasoning has not been uniformly adopted or applied by courts across the country.^[40]

In Laface Records, LLC v. Does 1-5, the court considered a complaint filed by various members of the music industry against five unknown individuals for copyright infringement.^[41] The recording industry parties issued a subpoena to Northern Michigan University, seeking records and information that would enable them to discover the identity of the defendants.^[42] The defendants moved to quash the subpoena, in part, on the basis that the subpoena sought information protected by the disclosure of FERPA.^[43] The Laface Court acknowledged that “FERPA includes a provision allowing…institutions to release such information in response to a court ordered subpoena.”^[44]

The Laface Court conceded that order the disclosure of the information sought by the Northern Michigan University subpoena would reveal student records to, not only the plaintiffs, but to the other defendants in the case.^[45] Nevertheless, without employing a balancing test to weigh the student’s privacy interests in the requested information against the interest of the plaintiffs in obtaining the student records, the court ordered a disclosure, albeit a limited disclosure, of the student information.^[46]

A ruling from the United States District Court for the Western District of Texas, Garza v. Scott & White Mem. Hosp., considered a similar request for FERPA-protected education records in a case involving wrongful death and negligence claims.^[47] The court considered a motion to compel the disclosure of documents from a defendant doctor’s medical residency file, records that were likely to contain FERPA protected information.^[48] Although not specifically in response to a subpoena request, the defendant made a similar argument that FERPA prohibited the disclosure of the file on the basis of the privacy interests at stake.^[49]

The Garza Court noted that “FERPA generally provides that the Department of Education may cut off federal funding to a school system that does not comply with its provisions.”^[50] But Garza quickly disregarded the FERPA disclosure argument, noting that “[b]y its plain terms, FERPA does not create an evidentiary privilege, and the Court agrees with prior decisions holding that documents covered by FERPA are indeed discoverable in the context of a civil action.”^[51] The court’s cursory analysis failed to employ a balancing test to weigh the interest of the party seeking the records with the privacy interest implicated by the records.

Garza, a wrongful death case, and Laface, a copyright infringement case, are examples of two courts paying little attention to the privacy interests contemplated and arguably embodied by FERPA, failing to apply a balancing test to weigh the interests implicated by each particular request for protected education records. This approach to requests for education records, whether specifically in response to a subpoena such as Laface, or a document request, as in Garza, is especially problematic in such cases where FERPA is more likely to be viewed as a mere obstacle to discovery in the context of litigation that addresses unrelated substantive issues of law such as intellectual property disputes (Laface) or torts (Garza). In Garza and Laface, student privacy interests appear to have been, at most, a tangential concern in the face of larger substantive disputes between the parties.

Garza and Laface are far from the only federal district courts electing not to apply a balancing test when confronted with the question of whether to disclose FERPA-protected education records. Yet, other courts have gone further than opting to forego applying the balancing test, affirmatively decreeing that there are no privacy interests at all implicated by the disclosure of FERPA-protected education records in response to a lawfully issued subpoena.^[52]

            C. Federal Courts reject any privacy rights embodied in FERPA

In Maggard v. Essar Global Ltd., the Court considered a complaint alleging that the defendants owed the plaintiff an $8.6 million commission for services rendered as a “Coal Consultant” in connection with the acquisition of a coal company.^[53] The plaintiff issued a subpoena for an individual’s Stanford University education records.^[54] The Maggard Court considered above-noted Rios v. Read case and its holding, regarding “the heavier burden on a party seeking access to student records…”^[55]

Maggard held that “Rios…is not binding precedent on this court, and there are no Fourth Circuit cases upholding this finding. I find doubtful that the Fourth Circuit, if called upon to do so, would find the existence of such a heightened burden on a party seeking student records.”^[56] The Maggard Court continued, applying the language of FERPA, stating: “I find so because the statute itself is silent regarding any such burden. Had the legislature intended for there to be such a burden, it simply could have explicitly placed it within the body of the statue.”^[57]

The Maggard Court then disregarded any burden on the plaintiff to demonstrate a need for the information, holding that “…I find that Maggard has no burden to show that he has a ‘genuine need’ for the information sought that outweighs [the subpoenaed individual]’s privacy interest. Instead, under FERPA, the only requirement is that the student be notified of the subpoena in advance of compliance therewith by the educational institution.”^[58]

The decision in Maggard reflects a coalescence of the reasoning of many courts, i.e., that there is no disclosure restriction or burden on any party seeking disclosure of FERPA-protected education records.^_[59] The Maggard opinion also succinctly illustrates that as persuasive as the Rios may be, the balancing test and the burden it purports to place on parties seeking a student’s education records do not have any binding or precedential power over other courts.

The interpretive framework for compliance with a lawfully issued subpoena seeking FERPA-protected education records is similarly byzantine when one considers a sampling of pertinent state court precedent interpreting FERPA.

            D. State Courts Interpreting FERPA’s Subpoena Disclosure Exception

State courts, less familiar with the application and interpretation of federal statues such as FERPA, pose a potentially significant problem with respect to the development of FERPA’s subpoena disclosure framework. With overextended dockets, trial courts considering subpoenas issued in matters otherwise unrelated to the issues unique to educational institutions, such as personal injury or malpractice cases, often give inconsistent consideration to the restrictions of FERPA and the case law interpreting the statute.^[60]

In Zaal v. State, the Maryland Court of Appeals considered a case involving a criminal defendant who was charged with the abuse of a child and sought to review the victim’s school records in connection with preparing his defense.^[61] In response, the state board of education filed a motion for a protective order regarding the education records at issue.^[62] The Zaal Court noted that “the statute contemplates that ‘students have substantial privacy and confidentiality interests in their school records.’”^[63]

Zaal followed the reasoning of Rios, supra, and held that the “[d]isclosure [of student records] is permitted when the need for it outweighs the privacy interest of the student or his or her parents.”^[64] The Zaal court reversed the trial court holding that the criminal defendant could have access to the victim’s records after balancing the criminal defendant’s constitutional rights against the victim’s right to privacy.[65] However, other courts have not formally applied a balancing test in analyzing FERPA’s disclosure requirements in the same manner as Zaal.

In State v. Birdsall, the Arizona Court of Appeals considered the disclosure of the education records of a deceased minor student who was allegedly a victim of the criminal defendant’s assault.^[66] Because the student records could have been relevant to the criminal defendant’s self-defense claim, the court allowed a limited disclosure of the records, restricting access to only those records involving the issue of the “aggressiveness.”^[67] Aside from a determination of relevance, however, the court in Birdsall did not employ a formal balancing test to weigh the student’s privacy interests against the subpoenaing party’s need for the information.^[68]

Although some may suggest that he court’s consideration of FERPA and the formal application of a balancing test are irrelevant if the court still considered the student’s privacy interests in limiting disclosure, the danger of failing to formally analyze the interests protected by FERPA is revealed by other decisions. In particular, as was noted above, in the Garza and Laface cases, many of the most inconsistent reasoning are present in those cases in which the privacy rights of a student represent tangential issues to a common tort or commercial litigation matter.^[69]

In Gaumond v. Trinity Repertory Co., the Rhode Island Supreme Court considered a case in which a student brought a personal injury suit against a defendant theater at which he was allegedly injured.^[70] The theater then issued a subpoena to obtain a school’s injury report for the student.^[71] The Gaumond Court failed to apply a balancing test of any kind with respect to the student’s privacy interest in the education records.

Instead, the court noted that “FERPA does not specifically employ the terms ‘privileged’ and ‘confidential’ but it clearly express the federal policy that student education records should not be widely disseminated to the public…”^[72] Because the court found that the discovery order did not “contemplate any public disclosure,” FERPA apparently did not prohibit disclosure of the student records.^[73] Even though the FERPA-disclosure balancing test from Rios is not expressly mandated by the provisions of FERPA, neither is the new condition created in the Gaumond case regarding wide dissemination of education records to the public.

The Gaumond Court’s willingness to read new conditions into the disclosure of FERPA-protected education records, whether consistent with the balancing test or not, reflect a pervasive uncertainty surrounding the conditions for disclosure of education records protected by FERPA, whether sought through subpoena or in another manner. There are several state cases, like Zaal, that apply the balancing test, but many more that do not and others that write their own new disclosure conditions into FERPA, such as the “public dissemination” condition of Gaumond.^[74]

Unlike federal district courts, many state trial courts that consider FERPA-disclosure issues, through motions for a protective order, to compel or to quash, do not issue formal published opinions. Thus, it is impossible to gain a meaningful understanding of how state trial courts are interpreting FERPA, whether they are applying the balancing test, ignoring it or creating new conditions and tests with respect to disclosure requests that implicate FERPA.

VI. To Balance or Not To Balance Privacy Interests

The aforementioned state and federal court decisions reflect an unclear and inconsistent state of the law where courts either decide to balance a party’s privacy interests against the interest of the party seeking education records, do not balance the privacy interests or endeavor to create new conditions that a particular court may envision as contemplated by FERPA.

Although the Rios decision stood as an exemplar case, introducing the FERPA-privacy interest balancing test,^[75] the decisions that have followed, both federal and state, have trod an inconsistent path in considering the privacy interests of students, including whether and how to recognize those interests.^[76]

The Garza, Laface, and Gaumond cases illustrate the methodologies of courts choosing not to balance the privacy interest of students with respect to the custody and care of their education records.^[77] Even though FERPA was passed, in part, to specifically protect students’ education records from unwarranted disclosure,^[78] without clear direction from the Supreme Court or Congress, through amendment of the statute itself, courts continue to inconsistently balance, or not balance, students’ privacy interests in the face of requests for protected education records. This unharmonious interpretive trend is particularly concerning in the realm of lawfully issued subpoenas as it has been noted that “subpoenaing student records seems to be a twenty-first century growth industry.”^[79]

Courts that employ the FERPA subpoena balancing test are clearly empowered to order the disclosure of student records when the circumstances warrant such disclosure. However, the balancing test mirror the intent of FERPA’s student privacy framework, giving courts the discretion to refuse to order the disclosure of sensitive student records when the privacy interests of the students outweigh the need of the requesting party.^[80] Courts interpreting FERPA need a clear framework to follow with respect to balancing the privacy interests of students whose education records are subpoenaed to ensure that all courts are interpreting FERPA harmoniously, thereby creating a consistent body of case law.

Nevertheless, it is unlikely that the Supreme Court will face an appeal from a ruling on a failure to properly balance FERPA-privacy interests “FERPA is silent as to any potential civil remedy that exists to ensure compliance.”^[81] In Gonzaga v. Doe, the Court held that “there is no question that FERPA’s nondisclosure provisions fail to confer enforceable rights.”^[82] Therefore, the Supreme Court has resolved that there is no private civil remedy for a violation of FERPA’s nondisclosure provisions, including its provisions concerning subpoena disclosures.

Accordingly, to the extent we seek to augment the FERPA-disclosure framework to mandate the inclusion and application of a balancing test or to otherwise clarify the non-disclosure framework, it is incumbent upon Congress to amend FERPA’s provisions to expressly include the balancing test or any other clarification.

A potential concern that may be raised in response to amending FERPA to include a balancing test for the disclosure of student records in response to a lawfully issued subpoena would be that danger of empowering schools with another mechanism to resist transparency.^[83] Yet, inherent to a balancing test is not only the power to protect students’ privacy interests but the countervailing authority to disclose education records to those who demonstrate a sufficient need. In those cases where the need for the records is significant, courts will have the power to weigh the privacy interests at issue and determine whether the need for the information is sufficient to justify the release of the records.

Over the years, FERPA’s protection of the privacy interests of students in their education records has grown weaker and the interpretive framework more opaque.^[84] As one scholar has noted, “FERPA’s developments in the twenty-first century are a strange confluence: an erosion of substantive protection and an evisceration of enforcement options, primarily via its interpretation by the Court, in the face of a congressional approach marked primarily by inaction.”^[85]

A new call to amend FERPA to clarify the conditions and framework under which education records can be disclosed in response to a lawfully issued subpoena is necessary in order to provide meaningful guidance to federal and state courts alike.^[86] Amending FERPA to include a clear and articulated mechanism, such as the aforementioned balancing test, to govern the disclosure of education records in response to a lawfully issued subpoena is one method that would bolster at least one aspect of a statute whose protection of privacy interests has grown weaker since its passage.

VII. Conclusion

FERPA was enacted to “both protect the confidentiality of student records and to guarantee access to one’s own student records.”^[87] Yet, in the years since its passage, the lack of clarity that attends its commands has relegated the statute to an often employed but seldom understood tool of litigants, schools and courts. FERPA’s disclosure exception in the face of a lawfully issued subpoena is one of those provisions unharmoniously applied and interpreted by federal and state courts.

In the late 1970s, a balancing test was developed to attempt to reconcile a litigant’s need for access to FERPA protected education records with the privacy interests of students, the protection of which was purportedly one of the purposes of the enactment of FERPA.^[88] Yet, that reasoned approach to govern the disclosure of education records in response to a lawfully issued subpoena, though influential throughout federal and state jurisdictions alike, has never been formally established as the framework which governs the disclosure of education records in response to the issuance of a subpoena.

Instead of uniformity, what has followed has been a byzantine approach by both federal and state courts, some applying the balancing test, some failing to apply the balance test, some adding their own different and unique conditions to the disclosure of education records and others rejecting the necessity to consider any FERPA-protected privacy interests. The problems that attend the opacity of FERPA’s restrictions must be clarified through amendment of the statute.

In order to provide a clear articulation of how courts, both federal and state, should interpret the subpoena disclosure provisions of FERPA, Congress should amend the statute to expressly provide for a balancing test, directing courts to weigh the privacy interests of students in their education records against the interests of a litigant in obtaining the records. To mandate the balancing of privacy interests as an express framework in FERPA itself, would give courts the discretion to effectuate the purpose of FERPA, while retaining the flexibility to order the disclosure of education records when necessary.

Such an amendment would answer the call of many to reinforce one of the foundational purposes of FERPA, the protection of students’ education records from unwarranted disclosure, while leaving courts with sufficient discretion to ensure the needs of litigants are met, without decreasing the transparency of educational institutions.