MOVING TO FRONT FROM THE EVENING OF 4/28--A COUPLE OF UPDATES/CLARIFICATIONS
Several philosophers have written me this week asking about the references to FERPA in both the letter from the Northwestern graduate students and in Prof. Kipnis's reply. In particular, the Northwestern students noted:
Students have rights not only under Title IX but also under the Family Educational Rights and Privacy Act [FERPA], and some of the material Kipnis discusses appears to be part of our colleague’s educational record. But regardless of whether this amounts to any formal violation of her privacy rights, there are clear reasons to be concerned about broadcasting very private details about an individual’s life without having or seeking her authorization to use that information, or offering the opportunity to comment.
I preface this by noting that I am not admitted to practice law in Illinois, and my knowledge of privacy law is very limited. I discussed the FERPA issues with an Illinois privacy lawyer (who does not specialize in FERPA) and with a law professor in Illinois who specializes in privacy, but not specifically FERPA. Based on that and my own reading, I offer a few comments that do not constitute legal advice (as nothing here ever does--I offer lots of prudential advice of course).
There is a tort, recognized in Illinois (and many other jurisdictions), of invasion of privacy. Here's an important Illinois case on the subject. In America--which has a highly "libertarian" regime of free speech (meaning sociopaths, Nazi lunatics, creepy misogynists, Canadian defamers of American "public figures" etc. have a lot of leeway), the invasion of privacy tort has an uncertain constitutional status, but a key to it almost everywhere is whether the revelation of private facts is "highly offensive to a reasonable person." Hiring private detectives to unearth "dirt" about an otherwise private individual probably qualifies (see the case linked above). I am skeptical that anything in Kipnis's book qualifies as invasion of privacy vis-a-vis the student complainants against Ludlow given the existing public records about these matters.
The more serious issue is FERPA. You can see the full text of the statute here. Prof. Kipnis is quite correct that FERPA does not create a private right of action: it imposes obligations only on educational institutions to protect the privacy of student educational records. A university in violation of FERPA could, in principle, face a world of grief, including financial grief (i.e., loss of federal funds, a bit like violating Title IX). A university, however, could also almost certainly discipline a faculty member who violated FERPA.