Deciphering the Supremacy of Federal Funding Conditions: Why State Open Records Law Must Yield to FERPA

IntroductionIn May 2009, the Chicago Tribune ran a series, "Clout Goes to College," in which it revealed the existence of a list of well-connected applicants maintained by the University of Illinois Urbana-Champaign.1 Some of the prospective students on the list were admitted to the university despite poor academic qualifications.2 "Category I," the University of Illinois's private ranking system for applicants with connections to high-powered politicians and other wealthy influencers, had been a well-kept secret, known only to those who benefitted from it and those within the admissions office, many of whom resisted it.3 Outrage ensued throughout the state upon the revelation that a public university was engaging in practices typical of the most elite private universities.4 In response, the university formed a task force to review its admissions practices.5 By October, the university had new policies "aimed at keeping clout out of admissions."6To gain access to the information needed to expose this scandal, the Tribune filed requests under Illinois's Freedom of Information Act, which permits members of the public to inspect the records of state entities.7 Through these requests, the Tribune received over 1800 pages of documents.8 These documents redacted student names, grades, test scores, and other information which the Tribune believed was critical to revealing the extent of the scandal.9 Nonetheless, the Tribune's expose hit hard; the university's president and nearly every trustee resigned following the revelation of the clout list.10 Despite the success of the initial series, the Tribune persisted in seeking access to the names and records of current students who benefitted from the list.11 In response to the Tribune's continued requests, the university claimed that it was prohibited from disclosing that information by the Family Educational Rights and Privacy Act of 1974 (FERPA), a federal statute conditioning the receipt of federal funds on universities' compliance with baseline student privacy protections.12FERPA is one of many federal statutes regulating the higher education sector through Congress's power to attach conditions to its spending.13 By placing conditions on the receipt of federal funds, Congress may use the carrot of federal funding to achieve federal policy goals in areas traditionally of state concern, like education.14 Such efforts are invariably successful because most universities, including public universities, depend on federal funds in the form of student financial aid, research grants, and other financial resources to survive.15In addition, state legislatures also regulate the education sector, in particular by placing obligations on public universities.16 At times, state laws seeking to achieve local policy goals place requirements on public universities that conflict with those attached to federal funding.17 This conflict is particularly vivid in the case of FERPA and state open records laws.18 Open records laws often require public universities, as state actors, to make many of their records available to the public upon request.19 As a result, when university officials receive an open records request that would require disclosure of particular students' identities, they must weigh their obligations as federal fund recipients against their legal duties under state law.20When asked to help universities resolve this conflict, courts have taken divergent approaches.21 In 2002, in United States v. Miami University, the U.S. Court of Appeals for the Sixth Circuit held that Miami University did not need to disclose student disciplinary records requested by the Chronicle of Higher Education, because FERPA's privacy requirements were exempt from the state open records law.22 But in 2011, in Chicago Tribune Co. v. University of Illinois Board of Trustees, the U.S. District Court for the Northern District of Illinois held that FERPA does not prohibit the University of Illinois from disclosing personally identifiable information about students on its clout list to the Chicago Tribune under the state open records law. …