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38 S. Ill. U. L.J. 241 (2013-2014)
FOIA vs. FERPA/Scalia v. Posner

handle is hein.journals/siulj38 and id is 261 raw text is: 




FOIA vs. FERPA/SCALIA VS. POSNER

Kristin Knotts*


                         I. INTRODUCTION

     In recent years, the University of Illinois-Springfield (UIS) and the
University of Illinois at Urbana-Champaign (UIUC) have been sued by two
different Illinois newspapers for the release of documents pursuant to
Illinois' Freedom of Information Act (FOIA). In each case, the universities
have relied on the Family Education Rights and Privacy Act (FERPA) to
defend their choices not to release the requested information. The State
Journal-Register (SJ-R) sued UIS to obtain documents related to the
resignation of a coach based on sexual assault allegations,' and the Chicago
Tribune sued UIUC for documents related to admission practices at the
college.2 (From hereafter, the two cases will be referred to as the UIS and
UIUC cases, respectively). Although the incidents that prompted such
FOIA requests are quite different, the legal issues are ultimately the same:
Are universities obligated to provide information, i.e., these newspapers, to
the public under Illinois' state FOIA, or can they protect themselves and
their students' privacy rights by claiming that FERPA prevents disclosure?
Do state FOIA laws trump requirements under FERPA to protect student
privacy rights, or does the fact that FERPA, as a federal law and thus
supreme (Supremacy Clause),3 automatically circumvent any requests for
information under FOIA?
     The main section of FERPA that applies in these cases, as well as
others that have been tried in the last several years, provides that public
educational institutions who are receiving funding from the federal
government shall not disclose or release the educational records or
personally identifiable information of students without the written consent
of the students' parents to any individual, agency, or institution. On the

*    Ms. Knotts has a B.A. in Political Science from the University of Michigan, a J.D. from the
     University of Denver College of Law, and will soon graduate from the University of Illinois-
     Springfield with a Masters in Legal Studies. Special thanks to Associate Professor Kathryn
     Eisenhart and Illinois Innocence Project Legal Director, John Hanlon.
1.   Bruce Rushton, Attorney's Letter Indicates UIS Coach Assaulted Players, ST. J.-REG. (Apr. 1,
     2011),    http://www.sj-r.com/x910657281/Letter-reveals-more-details-of-UIS-softball-team-
     incident.
2. Chi. Tribune Co. v. Univ. of Ill. Bd. of Trs. (UIUC Dist. Court), 781 F. Supp. 2d 672 (N.D. Ill.
     2011); Chi. Tribune Co. v. Bd. of Trs. of Univ. of Ill. (UIUC Appeals Court), 680 F.3d 1001 (7th
     Cir. 2012).
3.   U.S. CONsT. art. VI, § 2.
4.   20 U.S.C. § 1232g(b)(1) (2012).


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