Colleges use privacy law to block public scrutiny of troubled athletic programs

A national investigation finds widely different interpretations in granting public-record requests for documents of college athletics making it difficult to conduct any nation-wide inquiry. Only ten percent of the 69 colleges that provided information in the study released unedited reports on NCAA violations. -DB

The Coumbus Dispatch
May 31, 2009
By Jill Riepenhoff and Todd Jones

Across the country, many major-college athletic departments keep their NCAA troubles secret behind a thick veil of black ink or Wite-Out.

Alabama.Cincinnati. Florida. Florida State. Ohio State. Oklahoma. Oregon State. Utah. They all censor information in the name of student privacy, invoking a 35-year-old federal law whose author says it has been twisted and misused by the universities.

Former U.S. Sen. James L. Buckley said it’s time for Congress to rein in the Family Educational Rights and Privacy Act, which he crafted to keep academic records from public view.

A six-month Dispatch investigation found that FERPA, as it’s commonly called, is a law with many conflicting interpretations. And that makes it virtually impossible to decipher what is going on inside a $5 billion college-sports world that is funded by fans, donors, alumni, television networks and, at most schools, taxpayers.

The law is interpreted differently even within the same state. Kent State and Miami University are much more open than Ohio State University, for example. And it’s not just in Ohio.

“Some clarity would be helpful to us,” said OSU President E. Gordon Gee.

The Dispatch learned of the wildly different legal interpretations by sending public-records requests for athletics-related documents to all 119 colleges in the Football Bowl Subdivision (formerly Division I-A). The goal was to gauge their openness and use of the FERPA law.

The requests sought airplane flight manifests for football-team travel to road games; lists of people designated to receive athletes’ complimentary admission to football games; football players’ summer-employment documents; and reports of NCAA violations.

The records could help shed light on the inner workings of college-sports programs, including identifying the people who have access to athletes — some of whom are boosters and agents who, if acting improperly, can bring shame and fines to an entire athletic department.

In some cases, documents were unobtainable because of substantial fees charged by schools. For example, Maryland wanted $35,330 to produce the same documents that more than half the schools provided free.

Of the 69 schools that provided information:
• More than 80 percent released unedited information from ticket lists.
• About half did not censor flight manifests.
• Twenty percent gave full information about summer jobs held by football players.
• Ten percent provided unedited NCAA violations.

The results stunned Buckley, a retired federal judge from Connecticut who, as a U.S. senator, crafted the law to shield students’ report cards and transcripts. He can’t understand why any information about athletes would be withheld.

“Those examples provide zero harm to the kids,” he said.

No one disputes that grades are and should be private.

But today, privacy is extended to athletes who have gambled, accepted payoffs, cheated, cashed in on their notoriety, and even sexually abused others.

It is extended to coaches who have broken recruiting rules or committed academic fraud at a time when the average salary for a head football coach is more than $1 million a year.

It is extended to rogue boosters.

It even has been extended to an ESPN broadcaster named in school records.

“That’s not what we intended,” Buckley, 86, recently told The Dispatch in a rare interview. “The law needs to be revamped. Institutions are putting their own meaning into the law.”

Nebraska, Nevada and West Virginia, for example, refused to release any documents on NCAA violations in the name of student privacy.

Utah State and Texas A&M, however, didn’t withhold or censor any information.

Florida blacked out nearly every word of NCAA violations involving its football and basketball teams, but it didn’t censor as heavily such details about other sports.

FERPA is the reason the University of Cincinnati said it blacked out every word of an NCAA infraction involving members of its men’s basketball team between 2002 and 2004, during Bob Huggins’ tenure as coach.

FERPA is the reason Clemson University said it shielded the picture of a highly sought after high-school-football player who was photographed last year talking with a Tigers assistant coach at a game. That photograph was used to prove that the coach violated recruiting rules.

FERPA is the reason the University of Kentucky said it didn’t identify any of the men’s basketball players who ate free meals last year at a booster’s restaurant.

FERPA is the reason Ohio State strips most names from every record — including its own letterhead on faxes.

“I think we have been transparent. We provided the records. What’s been removed was the personally identifiable information of the student,” said Jan Neiger, a lawyer in OSU’s general counsel’s office. “We wouldn’t give you the record at all if we wanted to shield something.”

Many violations across the country remain unknown to fans, faculty members and the public, diminishing accountability at a time when an NCAA study shows that schools are increasingly using more general-fund money, sometimes including state tax dollars, to pay for athletics as higher-education costs soar.

“Things have gone wild,” Buckley said. “These are ridiculous extensions. One likes to think common sense would come into play. Clearly, these days, it isn’t true.”

Transparency lost

Critics of big-time college athletics say that keeping records secret hides disparities in the treatment of men and women, whites and blacks, star athletes and walk-on players.

Without full disclosure, it’s hard to tell how athletes are treated, said Donald Jackson, a Montgomery, Ala., lawyer who has represented athletes, coaches and universities in NCAA matters.

“The extension of the legislation was never intended for (the protection of) Smooth Sonny Johnson, the booster at X University, who slides quarterback Joe Smith $500 for coming to his house to deliver the newspaper,” Jackson said. “But that is the practice.”

And some universities are covering up criminal behavior in the name of student privacy, say Jackson and other advocates of transparency.

The University of Iowa, for example, did not share with the state’s oversight board for higher education a letter from the mother of a student who said the student had been raped. The letter criticized the university’s handling of the investigation and specifically called out the football coach and the athletic director for trying to keep the accusations of the assault quiet. The school withheld the letter from state officials because of FERPA.

The female student said that in October 2007 she was sexually abused by football players, who months later were charged criminally. University of Iowa officials also have refused to make details about the case public, citing student privacy.

Critics also say that the way athletic rule-breaking is handled is like the fox watching the henhouse, based on the relationship between the NCAA and the universities. The NCAA board comprises college presidents, and colleges are expected to initially investigate themselves.

As a result, some question whether there’s any true public oversight.

“It’s a way for them to whitewash some pretty serious crimes,” said Frank LoMonte, a lawyer and executive director of the Student Press Law Center, an organization based in Washington, D.C., that advocates for student journalists. “What you have is a system that is flawed.”

Law bred confusion

The crux of the problem dates to 1974, when Congress passed FERPA to protect “education records.”

Over the years, the U.S. Department of Education, which was tapped to oversee student-privacy compliance, has used its broad authority to interpret what can be made public without consent.

“All over the country, there are lawyers who curse the law,” said Lawrence White, consultant to university counsel at New Mexico. “FERPA is so clear. We have no discretion.”

At New Mexico, flight manifests and ticket lists, for example, are not “education records.”

Texas Tech, however, has a different view. It heavily redacted ticket lists and job information but not flight manifests. When asked about the inconsistencies between schools, Texas Tech senior associate general counsel Victor Mellinger said, “They made a mistake. If they’ve got student names, they’re protected by FERPA.”

The current interpretation of the law gives schools wide latitude to decide what is and isn’t public within nonacademic records. At one school, an “education record” is a document disclosing student grades and coursework, while at another, any document containing a student’s name is deemed an “education record.”

It’s akin to a speeding law that makes it illegal for drivers to exceed the limit but never tells them the limit. So schools, in effect, can decide for themselves how fast or slow they want to go, and many drive slowly.

About a third of the public Bowl Subdivision universities, such as Ohio State, are like Sunday drivers. They interpret the law so cautiously that virtually every record, document or report — from the mundane to the inflammatory — is stripped of athletes’ names and other key details.

“We’re looked at as the experts in the area,” Neiger said about the OSU staff. “Given that talent, that expertise, we’re quite confident we’re complying with federal law.”

The federal Education Department, however, said there might be problems.

“It sounds like some institutions are using this act to hide things,” said Paul Gammill, who recently took over the federal Education Department office that monitors FERPA compliance and interprets its intent. “Our office is as concerned about its use as its misuse.”

Schools found to have a “policy or practice” of violating student privacy risk losing federal funding, including student financial aid, which has never happened during the past 35 years.
The broad interpretation allowed by the federal Education Department troubles Ohio Attorney General Richard Cordray.

“If the federal guidance leaves latitude, then you’re going to get different institutions interpreting it differently, because some of them want to disclose more and some of them don’t,” Cordray said. “That kind of guidance isn’t very helpful. … It’s more like we’re saying we’re punting and leaving it up to you.”

Cordray has pledged to work with Ohio universities to decide what is and isn’t public. He said he also plans to take the issue to the National Association of Attorneys General and to press Congress for a clear definition.

Gee said that while FERPA lacks clarity, “Congress has other problems. It’s not the biggest issue facing higher education.”

And OSU Registrar Brad Myers questioned whether Congress should get involved in that level of detail.

“We’ve taken an approach that we think is very thoughtful, very serious,” Myers said. “There isn’t an exact, magic, definitional answer.”

But without clearer definition from the Department of Education or Congress on access to university records, the law remains murky at best.

Scandals cloaked

Open records would help the public better understand the scandals that have rocked some of the most prominent athletics programs in the country in the past decade.
Ohio State has reported its own athletes to the NCAA for receiving money, housing and free dental care from boosters, cashing in on their notoriety, and failing drug tests.
At Oklahoma in 2006, three football players received pay from a booster for jobs never performed.

At Florida State, dozens of athletes from multiple sports, including football and men’s basketball, cheated on tests.

Rogue boosters tripped up athletes and recruits at Alabama in 2002. The school faced the NCAA Committee on Infractions again in May because athletes misused the money they received to buy textbooks.

At Illinois in 2003, a booster befriended a recruit who went on to play for the Illini football team. For two years, the booster supplied the athlete with housing, car use and money for a no-work job.

All of those schools deleted names and many details of such violations from public records.

Those violations resulted in financial losses, damaged reputations and, in some cases, forfeiture of athletic victories.

The Final Four banners were removed from Ohio State’s Value City Arena because of NCAA rule-breaking. That violation involved former men’s basketball coach Jim O’Brien’s gift of money to a potential recruit and illegal benefits and academic help given to another player. Those violations cost the school more than $1.3 million in legal fees and NCAA penalties.

Florida State currently is spending about $200,000 to appeal one sanction of its numerous NCAA penalties in the cheating scandal. It is trying to preserve football victories so that Bobby Bowden might retire as the winningest football coach in college history.

“We’re never going to fix collegiate athletics unless they lift the veil of secrecy,” said David Ridpath, an assistant professor of sport administration at Ohio University and a member of the Drake Group, a national network of college professors who lobby for academic integrity in college athletics. Many of their efforts are hampered by confining and conflicting interpretations of FERPA, they say.

“People need to know the truth,” Ridpath said.

Athletes warned

To play college sports, athletes must forfeit some privacy, and most colleges tell them as much from the moment they enroll.

Schools require them to sign an NCAA waiver each fall that says, in part, “you agree to disclosure of your educational records.”

Universities use similar waiver forms for various reasons, and they prove handy when the NCAA and universities want to publicly pat backs.

Last fall, for example, Ohio State announced the grade-point averages of wide receiver Brian Robiskie (3.54) and linebacker Marcus Freeman (3.35).

Yet, when it comes to providing information about athletes who have done something embarrassing or costly to their schools, university and NCAA officials are far less forthcoming.

But the NCAA waiver also says this: “Information regarding any infractions matter in which you may be involved may be published or distributed to third parties.”

Critics of the broadly interpreted application of FERPA say the waiver allows release of information when an athlete runs afoul of its rules.

“I don’t think it does,” argued Kevin Lennon, vice president of academic affairs and membership affairs at the NCAA. He said the NCAA says it can speak publicly about an athlete only to clarify inaccurate media reports.

Critics say the NCAA, which is run by a board of college presidents, is the universities and that school officials act as agents of the NCAA when investigating rule-breaking. Universities, for example, investigate themselves, set their own punishments and then report findings to NCAA officials for approval.

The federal Education Department says the waiver gives only the NCAA — those who physically work in its Indianapolis headquarters — permission to release information, if it so chooses. However, the waiver doesn’t say that.

“The department’s interpretation is flat-out crazy,” said LoMonte, of the Student Press Law Center. “Once you have a signed waiver, you can’t hide behind FERPA anymore.”

Yet, the law seemed irrelevant last month when the NCAA publicly admonished an Iowa State wrestler by name for shoving an opponent after a match.

Records opened

A university’s cloak of privacy last year upended the life of an Ohio native and promising pitcher at Oklahoma State.

The NCAA and Oklahoma State invoked FERPA when they suspended sophomore Andy Oliver last May from the school’s baseball team.

Oliver, of northeastern Ohio, hired a sports lawyer to help him decide whether to enter the amateur draft as a senior at Vermilion High School in 2006.

That lawyer sent a letter to the NCAA last May to report that Oliver had broken collegiate amateur rules because he hired an agent.

Oliver hired another lawyer, who asked to see the NCAA investigative file.

“They were claiming FERPA,” said Rick Johnson, a Cleveland lawyer. “It’s not an education record, but they say it is. And this is Andy asking for his file.”

Johnson sued the NCAA in Ohio to restore Oliver’s eligibility, and the NCAA wanted all documents filed in the case to be kept confidential.

David Price, NCAA vice president of enforcement, said that airing the case publicly would harm the organization’s ability to investigate.

“Many of these sources (a) have requested and have been promised anonymity, and (b) could be adversely affected if their participation was disclosed,” Price said in an affidavit. “Without an expectation of confidentiality, individuals are afraid to come forward with relevant information because they fear retaliation, accusations of disloyalty, media scrutiny, litigation, and so on.”

An Erie County judge denied the NCAA’s request this month, ruling that reports of rule-breaking are not education records.

In February, Judge Tygh Tone ordered Oliver back on the mound.

The incident has left Johnson wondering how many others have had similar NCAA experiences.

“How does the public know if these kids are getting a fair shake?” Johnson said. “Why is the public not allowed to know the athlete was caught cheating? Why is this so secret? It’s only secret because they don’t want the public to know what they do to these kids.”
Whistleblower praised
Former Ohio State athletic director Andy Geiger tried the paternalistic approach when he learned five years ago that former quarterback Troy Smith had accepted $500 from a booster.
“People don’t need to know everything,” Geiger told The Dispatch in 2004 when questioned about the allegation.
For days, Geiger and football coach Jim Tressel would not explain the broken rule that led to Smith’s suspension from the Alamo Bowl that year.

Then Geoffrey Webster, a Columbus lawyer and Ohio State fan who uncovered the payment, went public.

Afterward, Webster said he was swamped with e-mails from current or former collegiate athletes across the country. “They all were saying thank you, that it was out of hand at their school, too,” Webster said.

Before giving money to Smith, booster Robert Q. Baker had tripped up at least two other Ohio State football players. But those problems didn’t become public until after the Smith incident.

If not for Webster’s intervention, it’s impossible to know how many other players might have been approached by Baker, now banned by Ohio State from his luxury suite at Ohio Stadium. Baker was not banned until after public disclosure of the facts.

Smith’s acceptance of the cash amounted to an NCAA misdemeanor. Such violations can result in lost playing time and requirements to pay money to a charity.

Schools report hundreds of secondary violations every year. They include cases of athletes gambling (Arizona, Ohio University and Toledo). They include cases of athletes using their scholarship book money to buy supplies for friends (Ball State, Florida State and Georgia). They include athletes providing alcohol to recruits (New Mexico, Ohio State and Texas Tech).

Most athletes involved in those cases were suspended from practice and games as punishment, making clear to observant fans that something was amiss. Coaches often say such players “violated team rules.”

Even so, their secrets are safe at some universities because of FERPA.

The current interpretation of the law gives schools wide latitude to decide what is and isn’t public within nonacademic records. At one school, an “education record” is a document disclosing student grades and coursework, while at another, any document containing a student’s name is deemed an “education record.”

Public universities that released athletics-related records to The Dispatch

Schools most open with records (Eastern Michigan, Indiana, Louisiana-Monroe, Rutgers, Utah State)
Didn’t censor any information (Eastern Michigan, Louisiana-Monroe, Utah State)
Did not produce a single document in six months (includes Auburn, North Carolina, UCLA)
Refused to release any documents (includes Arkansas, Penn State, Tennessee)
Ignored the request completely (Michigan State)
Took at least three months to comply (includes Cincinnati, Ohio State and Toledo)
Stripped athletes’ names from every document (includes Georgia, Ohio State, Utah)
Source: Dispatch analysis of universities’ responses to public-record requests

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