Re: Case Studies

Harvey Perlman suggested:
> But let's say that you find a juicy
>newspaper clipping from Nexis about one of your students. The article
>is 4 years old and was printed in a state some distance from the
>College. You now walk into class (its a Torts Class right?), read the
>article, and ask "Is this a defamation?" Liable?

Assuming that the facts are that a professor finds a Nexis story concerning a student, downloads the information to some form of paper or electronic storage, and then reads the story to a class without the student's consent, the professor has another problem in addition to putative state law libel, invasion of privacy, or intentional or negligent infliction of emotional distress claims -- a violation of the federal Family Educational Rights and Privacy Act, 20 U.S.C. 1232(g).

Once the professor acquired information concerning a student presently under the professor's instruction and then created a record (whether temporary or not) concerning that student, the record created arguably became an educational record within the meaning of 20 U.S.C. 1232(g) and 34 C.F.R. 99. Disclosure to third parties of such records or of the information contained in them is prohibited without the consent of the student or under certain conditions specified by the statute.

Although no private cause of action acrues under 20 U.S.C. 1232(g), a professor at a public university who made such disclosures might be held liable under the "and laws" clause of 42 U.S.C. 1983, see e.g. Fay v. South Colonie Central School District, 802 F.2d 21 (2d Cir. 1986). In addition, several of the states have enacted similar legislation creating private causes of action. Unlike libel or similar claims, the unlawful educational records disclosure claims would not require proof of malicious intent. (I suspect that the institution itself would wave copies of its FERPA compliance policies and be able to escape Section 1983 liability for the professor's misconduct as "random and unauthorized conduct" under the Parratt-Hudson doctrine.)

Ina Schiff
<EX249000[_at_]BROWNVM.brown.edu> Received on Tue Feb 01 1994 - 23:25:17 GMT