Privacy in a Public World: FERPA, Jack Swarbrick and Manti Te’o

A federal law called FERPA prevents administrators, faculty and other “officials” at the University from disclosing information about a student, present or past. In this post, I want to explore what role, if any, FERPA played in Notre Dame’s ongoing response to the Manti Te’o hoax. As I hope to show, Notre Dame decided upon a deliberate course of action to make as comprehensive a statement as it could under the circumstances and then fade into the background, allowing FERPA and privacy concerns to close behind like a theatre curtain.

“My focus here tonight is to talk to you about what the University knew, when we knew it, and what decisions we made based on that information. Much of what drove that process and those decisions relates in part to a fundamental view of the importance of student privacy, and that will likely play a role tonight also because, at the end of the day, this is Manti’s story to tell and we believe he should have the right to tell it, which he is going to do.” With these words, Notre Dame’s Athletic Director, Jack Swarbrick, laid down privacy as a marker as early as possible in his January 16 presser. Thing is, I don’t know that privacy was legitimately susceptible of being put back in the bag at that point.

The Family Educational Rights and Privacy Act of 1974 (FERPA) prohibits “school officials,” and the AD is certainly one of those, from disclosing a student’s “education record.” And exactly what constitutes an “education record” is very widely-drawn. While grades or financial aid information come easily to mind, FERPA protects almost any piece of student information maintained by a college or university receiving federal aid. FERPA’s ambit is so sweeping that it may be easiest to illustrate what it protects by mentioning what information if specifically exempts from protection, such as directory information, scholarships, and an athlete’s measurements. That’s right, without these exceptions, FERPA would prohibit any disclosure of student information and make National Signing Day really, incredibly boring.

Now, absent compliance with a court order or some other very narrow circumstance, the only way around FERPA is the dated, written consent of the student in question. To my mind, for Swarbrick to hold his press conference he had to know the University had Manti’s written, dated consent. The extent of that permission probably extended to exactly what the AD disclosed and explains why there’s been nothing further from anyone. Even the AD’s letter to the Board of Trustees was kept close to the vest and only made public by an unnamed source.

Nothing suggests any nefarious intent behind the University’s position vis a vis Manti’s privacy. In fact, the timeline of events suggests a sincere attempt to satisfy both competing interests: a student’s privacy and an insatiable public. In fact, other schools have used FERPA to sweep all sorts of issues under the proverbial carpet. Alabama, for example, will reveal the personal information of its signees yet will not reveal how many scholarships it awarded. This time, it seems, Notre Dame took the middle-ground with Manti’s consent.

  • jmbsax

    I made this same comment on ND Nation a few days after the press conference. My son recently graduated from Tulane University; at the freshman orientation, we were told that without a FERPA waiver signed by the student, the university could reveal almost no information about his college experience. Recently, before I could speak to my son’s academic advisor concerning his early graduation, I had to fax a copy of the FERPA waiver to her before the discussion could continue. As such, I am sure the ND administration (like that of any university) was keenly aware of privacy concerns and what they could and could not say regarding this situation. Those in the media who criticize the university for failing to “come forward” immediately and deem said silence as evidence of a cover-up are apparently ignorant of the law, not to mention the fact that this story concerns Manti’s private life and is more appropriately his to tell.