by Lyle Denniston
THE STATEMENTS AT ISSUE:
“We go to the mat for students. We feel very strongly about protecting the privacy of our students.”
– Patti Locascio, general counsel of Santa Fe College in Gainesville, Fla., discussing the college’s plan to challenge a state court ruling requiring it to disclose the name of a student who wrote a critical evaluation of an adjunct professor, whose contract was not renewed. The comment was reported in the Gainesille Sun on July 19.
“The case foregrounds several troubling developments about the modern university, [including] the growing influence of anonymous student evaluations, which over the decades have come to be universal practice….It’s far too optimistic to think that the appellate court’s decision will open the door to sunshine laws when it comes to student evaluations, but it might be an interesting start.”
– Frank Donoghue, a professor at Ohio State University, commenting on the same Florida court ruling, on the online page of The Chronicle of High Education, August 7.
WE CHECKED THE CONSTITUTION, AND…
Students who pack their backpacks to head off to colleges and universities carry with them a bundle of legal rights – more than their younger brothers and sisters have in high schools or elementary schools. If they go to state-supported institutions, they very likely will have more rights than those who go to private schools. But not all of the rights students have come from the Constitution, and not all of them can be enforced by the individual students themselves.
For generations, the nation’s courts have been busy defining college students’ rights to free speech, to the free exercise of their religious faith, and to personal privacy for themselves and their belongings. Those rights do emerge in the Constitution – the First and Fourth Amendments, specifically. But they are enforceable for students at state institutions, since those campuses are the ones directly bound by the Constitution.
More importantly, perhaps, those rights and not absolute: the administrators of colleges, and state and local police, retain a good deal of authority to maintain order and to ensure student safety, whether or not the campus is a part of a state system or is private.
Students on campuses of all kinds can gain some rights from Congress, when the lawmakers decide to use their power to spend federal dollars to influence education in America. In return for that money, colleges can be required to obey conditions that Congress attaches. And that is what Congress did, beginning in 1974, when it made a major move to protect the privacy of students’ academic records.
On the general theory that how a student performs is very much a part of that students’ private profile (much like, perhaps, a patient’s private medical records are deeply personal), Congress passed the Family Educational Rights & Privacy Act to shield those records from disclosure without the student’s consent (although there are some exceptions).
The enforcement of that privacy, though, can be done only by federal officials, using the ultimate threat of cutting off federal money if a college has a notably bad record of shielding that privacy. The Supreme Court ruled in 2002 that the students themselves cannot bring a civil rights lawsuit on their own to enforce those privacy guarantees, so those guarantees exist more in general than for particular students.
That very privacy, though, has stirred up a significant controversy on a variety of campuses, because many institutions have extended it to the students who take part in a now-widespread campus program of allowing students to make evaluations of the faculty. That, of course, is part of a spreading student democracy movement, with students gaining increasing roles in campus governance.
But such evaluations are, for obvious reasons, not uniformly popular with faculties. And, as the comment cited above by Professor Donoghue implies, the anonymity of the evaluators is especially resented, since that can make it harder to combat a negative report.
A teacher at a state college in Florida, Adjunct Professor Darnell Rhea, was frustrated when school officials would not tell him which student of his had written an e-mail evaluation that criticized his classroom demeanor and his teaching approach.
After failing to get rehired at Santa Fe College after his contract had expired, Rhea believed that the e-mail was part of the reason, so he sued in Florida under that state’s “sunshine law,” which generally supports public access to state records.
The Santa Fe administration countered that the student’s evaluation was an educational record and the federal educational privacy law thus cloaked that student’s identity. A Florida appeals court – following what it said was a developing trend in other courts – ruled for the ex-professor. It did so by the simple rationale that a student evaluation is not really about the student, but is about the faculty member.
The court declared: “The e-mail focuses primarily on instructor Rhea’s alleged teaching methods and inappropriate conduct and statements in the classroom, and only incidentally relates to the student author or to any other students in the classroom….The fact that it was authored by a student does not convert it into an ‘education record.’ “ Rhea, it said, “has a clear legal right” to it under state open records law.
Santa Fe’s administration has the option of appealing the case further. The string of other courts’ similar rulings, on which the Florida court said it was relying, and the fact that students cannot themselves sue to insulate their privacy, may indicate that a shift is developing toward stronger faculty rights to know their accusers. Whether that will discourage student “whistle-blowers” remains to be seen.
Lyle Denniston is the National Constitution Center’s Adviser on Constitutional Literacy. He has reported on the Supreme Court for 54 years, currently covering it for SCOTUSblog, an online clearinghouse of information about the Supreme Court’s work. This piece appeared on the Center’s blog and is used here with permission.