Was a crime committed against Bledsoe?

I keep hearing people say that Eric Bledsoe was a victim of a crime.

To be sure, he was a victim of information from a Federally protected academic record being leaked into the public domain. (His transcript, by the way, has not been published for the public.) But is that a crime? No. It is not a crime. Technically, it is a violation of his rights under the Family Educational Right to Privacy Act.

FERPA is an act that applies to educational institutions. It does not apply, however, to newspapers or other media organizations. You cover public universities for nearly 20 years, and you develop a long working relationship with FERPA.

Whoever leaked Bledsoe’s transcript to the media violated this law. But there is, strictly speaking, no crime to charge them with. They can’t go to jail for it or be made to pay restitution. I’ll repeat this several times: FERPA does not provide a private cause of action allowing individuals to sue to enforce its enforcement provisions.

The process for reporting a FERPA violation, in fact, does not even begin in the courts. It begins as a complaint to the U.S. Department of Education. The DOE (technically, the Family Policy Compliance Office) then investigates, and if it finds that a school has violated a student’s FERPA rights, it can take action against the school by withdrawing Federal funding for that institution.

But the law does not provide for penalizing a school for a single instance. It provides for withholding Federal funds only for those schools who make it a policy or practice to violate FERPA’s provisions.

Beyond that, the original FERPA law carried no private right to monetary damages, a position that was upheld by the U.S. Supreme Court in 2002 in Gonzaga v. John Doe.

However, some individuals have had better luck suing for damages by using state laws, and I’m not sure whether there might be statutes in other states under which Bledsoe could seek damages. The problem, of course, is finding out where the leak took place, and then suing under that state’s law, if one is applicable.

The bottom line — FERPA leaks are violations, but cannot be characterized as criminal acts.

As for suing The New York Times or other outlets who received this information and printed it, that’s a legal brick wall. The First Amendment provides wide protection for media reporting on matters of the public interest. If the Times could publish the classified and highly secret Pentagon Papers, reporting details from a college basketball player’s high school transcript is probably not going to go far in court.

This, by the way, is a huge issue in journalism right now, with sites like Wikileaks and others publishing confidential information right and left. Most of that business and personal information is not governed by a law like FERPA, so the following discussion link on the subject can’t be applied to the Bledsoe situation, but I provide it just as one good example of the labyrinth of considerations involved in this issue.

The prior link shows one problem of suing the media is that it actually draws more attention to the thing which you didn’t want public in the first place. Moreover, that suit could get really dicey if someone were to press it, giving opposing attorneys excuse to depose school officials involved under oath to prove it was reporting a story on a nature of public importance.

That’s not to say I don’t feel bad for Bledsoe. Nobody wants their academic record being paraded around in public against their wishes. But neither have I heard Bledsoe speaking out about it, or taking questions about it, or voicing any displeasure over it in any way. He certainly has the means to rectify any harm his academic reputation has suffered by returning to school, and by speaking out publicly about the importance of academics. Let’s hope he does those things.

But for those neophyte Ferpsters now screaming that a crime has been committed and that somebody must “pay,” that’s not really how FERPA works. It was a law passed to govern schools, not to send anyone to jail, nor to provide money damages against violators.

Whoever leaked Bledsoe’s transcript violated this law, but that person did not, strictly speaking, commit a crime, at least not under FERPA. It’s only a crime if you can be convicted for it (otherwise it’s an offense, or an infraction, or some such). There’s nothing for which a court can find you guilty under FERPA law.


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