State PIRGs' Higher Education Project
218 D Street SE
Washington, DC 20003
(202) 546-9707

Director:
Ivan Frishberg

Advocate:
Ellynne Bannon

 

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