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.
Universities (and their agents, like professors) are forbidden from disclosing "personally identifiable information" about students, so the mere use of pseudonyms (which Prof. Kipnis employed) does not by itself insulate writing from a possible FERPA violation. The crucial question is whether any material in Kipnis's book derived from student "educational records," and this is what any litigation will be about. If Professor Weinstein posts on his blog that his student, Ms. Kipling, got a lousy grade in his class, then Prof. Weinstein has violated FERPA. If Prof. Weinstein posts on Facebook that Ms. Kipling, who often e-mails him after class, "appears to be an idiot based on her comments," he has violated FERPA. And so on.
But what else are student educational records? Are texts between a faculty member and student having an affair "educational records"? Doubtful. Are e-mails from the student to the faculty member at her university e-mail address "educational records"? Also doubtful, as I understand it. Are a faculty member's comments to a journalist about a student's performance in the program a violation of the privacy of the student's educational record under FERPA? Possibly.
I would expect Northwestern to investigate whether anything in Prof. Kipnis's book constitutes a FERPA violation, given how serious the consequences for Northwestern would be. Nothing in the book struck me as obviously a FERPA violation, but that's a low standard: I didn't read the book with this issue in mind and I am not an expert in the matter.
I would not be surprised if litgation resulted from the Kipnis book that dwarfs anything that has come before, though not mainly over the FERPA issue. Prof. Kipnis offers damning accounts of many named individuals, both administrative professionals at Northwestern and lawyers, as well as a handful of individuals elsewhere. It is, as lawyers says, defamation "per se" to describe someone as "incompetent" in their profession, when they are in fact competent. (Defamation "per se" is an important category, since the plaintiff does not have to prove damages, just that what was said was false and impugns her professional competence.) Many of the individuals who are identifiable by description if not by name might also have defamation claims, if not "per se" ones. The massive media attention only strengthens the case of plaintiffs if there are false statements. I suspect the Kipnis book and its account of the Ludlow case will be occupying our attention for awhile.
ADDENDUM: I wrongly omitted mention of the most likely source of a FERPA problem in the book: its reliance on and reference to various Title IX complaints and findings, which almost certainly are part of the student's educational record (i.e., the student filing the complaint).
ONE MORE FERPA COMMENT: The protection of FERPA applies to a student's educational records, but it does not generally cover things a faculty member knows from personal experience unmediated by records. So, e.g., it does not violate FERPA for a university employee to report, "I saw Ms. Kipling with Prof. Weinstein at a bar near campus." That means my example, above, about a Facebook comment by a faculty member about a student's intelligence based on comments in class may be a borderline case, I'm just unsure.
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