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September
24, 2001
The
Honorable Patrick Leahy, Chairman
Senate Judiciary Committee
433 Senate Russell Office Building
United States Senate
Washington, D.C. 20510
The
Honorable Orrin Hatch, Ranking Member
Senate Judiciary Committee
104 Senate Hart Office Building
United States Senate
Washington, D.C. 20510
Dear
Mr. Chairman and Senator Hatch,
As
a national higher education and public interest organization,
we wish to express our profound sympathy for those affected
by the terrible events of September 11th. While Americans
struggle to come to terms with this tragedy Congress has been
charged to lead the nation and to grapple with a number of
difficult decisions. One such decision is how best to protect
Americans from further terrorist attacks. As you begin consideration
of the Anti-Terrorist Act of 2001, I urge you to omit the
Disclosure of Educational Records provision, as it is currently
written, from final passage of the Act. This provision overreaches
and disregards existing options for law enforcement to prevent
terrorism.
Under
current Federal law, the Family Educational Rights and Privacy
Act (FERPA) allows for the disclosure of student educational
records in at least two basic situations relevant to protecting
against terrorist attacks:
First,
the law allows for the disclosure of nonconsensual release
of a student's non-directory information records to federal
authorities in certain emergency situations. This includes
personal information such as medical records, academic transcripts,
financial aid statements and student procedural hearing
data. The Department of Education has advised several universities
and colleges that it deems the release of this information
to law enforcement authorities investigating last Tuesday's
terrorist attacks as allowable under the FERPA emergency
disclosure provisions.
Second,
FERPA allows for schools to release these records in order
to comply with a judicial order or a lawfully issued subpoena.
For federal authorities like the FBI this is a simple procedure.
This may also be made easier by the New Homeland Defense
Department.
The
disclosure provision of the Anti-Terrorist Act of 2001 overreaches
because it would allow access to whole groups or population
searches of student records. In other words entire ethnic
groups like Arab-Americans could have their educational records
seized without any judicial oversight.
We
believe that the provision's language is too vague as to what
could "reasonably be expected to" prevent terrorism. This
wording is ambiguous and would grant the Attorney General,
Secretary of Education or other federal officer open-ended
authority to act with out the proper checks and balances of
the judicial system.
The
terrorist attack on the United States on September 11th was
a terrible crime. As a nation we must take the necessary steps
to prevent another such tragedy. However, we should tread
cautiously in crafting anti-terrorism legislation. Please
omit the Disclosure of Educational Records provision, as written,
in the final passage of the Anti-Terrorist Act of 2001. I
thank you for your dedication and service in such difficult
times.
Sincerely,
Ellynne Bannon
The State PIRGs' Higher Education Advocate
cc:
The Honorable Edward Kennedy, Chairman of the Senate Health,
Education, Labor and Pensions Committee;
The
Honorable Judd Gregg, Ranking Member of the Senate Health,
Education, Labor and Pensions Committee
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