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November 21, 1991

HON. LAMAR ALEXANDER, Secretary, Department of Education, and UNITED STATES DEPARMENT OF EDUCATION, Defendants

Stanley S. Harris, United States District Judge.

The opinion of the court was delivered by: HARRIS

Now before the Court is plaintiffs' motion for a preliminary injunction. On consideration of the entire record, the Court grants plaintiffs' motion.

 This action challenges a provision of the Family Educational Rights and Privacy Act (FERPA), 20 U.S.C.A. § 1232g (1990 & Supp. 1991). *fn1" Plaintiffs are three student journalists and a not-for-profit corporation that promotes the legal rights of the student press. Defendants are the Secretary of Education (Secretary) and the Department of Education (DoE), which enforces the FERPA. Plaintiffs challenge a provision of the FERPA that empowers the DoE to withdraw federal funding from a university that has a policy or practice of disclosing to the public personally identifiable information in the arrest and incident reports of campus police. Plaintiffs allege that the subject portion of the FERPA violates their Fifth Amendment right to equal protection and their First Amendment rights to free speech and freedom of the press. They seek an order enjoining the defendants from further enforcing the statute.


 1. The FERPA

 Congress enacted the FERPA in 1974. Pub. L. No. 90-247, Title IV, § 438, 88 Stat. 571 (1974). The statute's apparent purpose is to ensure access to educational records for students and parents and to protect the privacy of such records from the public at large. See Bauer v. Kincaid, 759 F. Supp. 575, 590-91 (W.D. Mo. 1991).

 The FERPA conditions federal educational funding on maintaining the privacy of "education records other than directory information." 20 U.S.C.A. § 1232g(b)(2). Education records consist of "those records, files, documents, and other materials which (1) contain information directly related to a student; and (ii) are maintained by an educational agency or institution or by a person acting for such agency or institution." Id. § 1232g(a)(4)(A). Education records do not include "the records and documents of [a] law enforcement unit," if the law enforcement unit meets four conditions. The unit may not have access to education records, it must maintain its records separate from all education records, it must compile the records solely for law enforcement purposes, and it may not make the records "available to persons other than law enforcement ." Id. § 1232g(a)(4)(B)(ii). The effect of the fourth condition is that "law enforcement records" become "education records" if the campus law enforcement unit makes them directly available to the public. *fn2" Disclosing the records of campus police to anyone other than local law enforcement authorities violates the FERPA's privacy provisions and constitutes a ground for withdrawing federal assistance. *fn3"

 The FERPA authorizes the Secretary to terminate all federal funding of an institution if "there has been a failure to comply with the provisions of this section, and . . . compliance cannot be secured by voluntary means." 20 U.S.C. § 1232g(f). The DoE's Family Policy Compliance Office (Compliance Office) oversees enforcement of the FERPA. 34 C.F.R. § 99.60(b) (1991). The Compliance Office does not take formal action under the FERPA on its own initiative. An individual must instigate a compliance action by filing a complaint against an institution. After investigating the complaint, the Compliance Office issues a written finding and, if it finds a violation, a "statement of the specific steps that the agency or institution must take to comply." 34 C.F.R. § 99.66(c)(2). If the institution fails to comply, the Secretary may issue an order to cease the violation, or he may issue a notice of intent to terminate funding. Since 1974, the Secretary has found 150 violations through the formal complaint process. In every case, with the extraordinary leverage of withdrawing all federal funding, the DoE has obtained voluntary compliance before rendering a formal ruling. (Defendants' Memorandum at 18.) *fn4"

 The formal complaint process is not the DoE's sole method of obtaining compliance with the FERPA. The Compliance Office has a policy of providing guidance on FERPA's provisions when it believes that an agency or institution may have violated the statute. (Defendants' Memorandum at 15.) The Compliance Office provides such guidance on its own initiative through what it characterizes as "technical assistance" letters, which explain the FERPA and its potential application to the agency or institution. (See Defendants' Ex. C.) The technical assistance letters do not bind the Secretary and do not constitute final agency rulings. (Defendants' Memorandum at 15.)

 2. FERPA's Effect on the Student Press

 In February 1991, plaintiff Student Press Law Center (SPLC) published the results of a survey indicating that 24 universities routinely disclosed personally identifiable information regarding students in campus crime reports. (Goodman Aff. at 3.) Each of the universities was a recipient of federal funds, making the practice of disclosing personally identifiable information a potential violation of the FERPA. The DoE's Compliance Office wrote "technical assistance" letters to 14 of the universities, citing the SPLC report. *fn5" (Defendants' Ex. C, Schrotberger Aff. Ex. B.) The letters explained the FERPA's application to law enforcement records and indicated that continued disclosure of personally identifiable information regarding students in campus crime reports might result in losing federal funding. The letters suggested that the universities turn to state legislators if complying with the FERPA would place them in violation of state freedom of information laws. (Defendants' Ex. C.)

 As a result of the Compliance Office's letters, five universities ceased providing public access to campus crime reports containing personally identifiable information regarding students. *fn6" (Goodman Aff. at 4-6; Defendants' Ex. D.) The President of Arizona State University (ASU) confirmed that the DoE's technical assistance letter prompted ASU to adopt a policy of deleting student names from campus crime reports before making the reports public. (Coor Aff. at 2.) The four other universities adopted similar policies in response to the technical assistance letters. *fn7" (Goodman Aff. at 4-6.)

 Plaintiff Lyn Schrotberger is a student at Colorado State University (CSU) and editor-in-chief of a campus daily newspaper. She attests that the CSU police department (CSUPD) routinely provided its campus crime reports to student reporters prior to February 199[1]. (Schrotberger Aff. at 3.) After receiving a technical assistance letter from the DoE's Compliance Office, the CSUPD stopped providing public access to its campus crime reports. (Schrotberger Aff. at 3 & Exs. D, E.) Schrotberger states that she must now seek the names of arrested students from the Larimer County Detention Center, which keeps a log of all the arrests in the county and does not indicate which arrestees are CSU students. *fn8"

 Plaintiffs Sam Cristy and James C. Brewer are students at the University of Tennessee (UT) in Knoxville and are involved in student journalism. *fn9" The UT Police Department (UTPD) has a longstanding policy against disclosing personally identifiable information regarding students in its records of reported campus crimes. (Cristy Aff. at 4; Brewer Aff. at 2). The names of students arrested on campus are available through the Knoxville Police Department (KPD) which maintains a log of officers' reports for the entire city. (Cristy Aff. at 6.) The log includes the names and addresses of arrestees and the arresting department. Both the UTPD and the KPD make arrests on UT's campus. To identify arrests on campus involving students, an interested member of the public must ...

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