Fearful Educators Redact Public Archives: FERPA creep strikes again

The Columbus Dispatch sent requests for athletics-related documents to every Division I-A college in the United States. Easy enough, right? All public records, mostly public schools, and a process so routine that most schools have special offices dedicated to handling them. Turns out, most colleges are going crazy with the CIA highlighters, thanks to varied and creeping interpretations of the federal privacy law that protects student information. From the article:

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.

Read the full investigation here. The University of Arizona isn’t mentioned in the article, but according to the newspaper’s online database, we’re no paragon of transparency. The athletics department ignored a request for team flight manifests, refused to disclose recipients of complimentary plane tickets, blacked out names on student job records, and redacted names and details in a report on NCAA violations.

Of course, UA invokes FERPA outside of athletics, too. UA’s official interpretation of the law is covered in this memo from the Office of General Counsel. It’s pretty strict, defining student records as “any information or data recorded in any medium including but not limited to handwriting, print, tapes, film, e-mail, microfilm, and microfiche, which is directly related to a student and maintained by the University or a person acting for the University.”

Then it carves out a few big exceptions: administrators and support staff with “legitimate educational interest” (there goes a privacy objection to Project Crime STOP), a few exceptions in the case of serious disciplinary violations, especially sex offences, and most controversial, notifying the parents of students caught drinking underage.

As the Ohio investigation shows, it’s not an uncommon interpretation, but it is an overbroad one. In the past, UA has used FERPA to protect student government records and information on crimes committed on campus. The law has interfered with publishing a yearbook, and embroiled UA in serious controversy when they rolled out the first CatCards in 1998.

Protecting the academic records of adult students is a perfectly good goal, but even at UA, FERPA has crept far beyond its original intent. In practice, it is used to privilege some records that would otherwise be public information–things like athletics information and conduct violations–while maintaining exceptions for others, like student surveillance and parental notification. There’s a fair case for strict privacy without consent, and a compelling one for total transparency, but UA’s current interpretation of FERPA–along with those of many of its peer universities–offers the worst of both.

Is the NCAA a talent cartel?

Our men’s basketball team might attribute their seven game winning streak to lucky facial hair, but economist Thomas Grennes has a better explanation for UA’s athletic prowess: years of subtle competition with other members of the shadowy cabal that manipulates the world of college basketball the NCAA. In a recent article published by the Pope Center for Higher Education, he argues that the NCAA acts as a cartel to mitigate the price of athletic talent:

College athletics is controlled by a powerful cartel. That cartel, managed by the National Collegiate Athletic Association (NCAA), provides a good livelihood for the adults involved—coaches, athletic directors, team doctors, sports announcers, and college presidents. Those adults receive handsome, competitive salaries that sometimes exceed $1 million per year.

But the athletes themselves miss out on the benefits of competition. Hoping to become highly-paid professional players (only a minuscule portion do), football and basketball players accept scholarships for room, board, and tuition. Payment is called a “scholarship” in order to qualify for tax advantages.

No college is allowed to pay more, and anything resembling a gift is exhaustively scrutinized. A star athlete cannot receive more compensation than an obscure teammate who sits on the bench most of the time.

Essentially, the NCAA is acting as a buyers’ cartel just as OPEC acts as a sellers’ cartel for oil-producing countries. It makes sure that the normal forces of supply and demand do not operate. If competition for outstanding athletes prevailed, outstanding athletes, like outstanding coaches, would be very well paid. Colleges don’t want to pay those high wages, and the NCAA is acting as their agent.

UA spends a lot (read: upwards of $32 million a year) on athletics, and officials have spent much of that money on the kind of competitive measures that fall outside the NCAA’s cartel regulations. Some of them are just lucky breaks: Lute Olson is probably the best human capital investment the university has ever made. Others are more calculated: facilities like the Richard Jefferson gym and services like extra tutoring and lax classes for athletes. All of them are substitutes for the wage competition that would take place in a competitive market for college athletic talent. But what’s wrong with extensive regulation from the NCAA? Well, consider professional drafts:

Perhaps the most extreme example of the cartel-like arrangement in these sports is the cooperation by colleges with the professional basketball and football drafts of college students. For example, when the NFL has its annual draft, each eligible player is selected by one team; all teams agree they will not offer jobs to draftees of other teams. If a player is drafted by Cleveland but wants to play in New York, his only option is to try to persuade Cleveland’s management to trade him to New York. 

Americans wouldn’t tolerate such an arrangement anywhere else. Imagine if colleges gave the right to hire their electrical engineering graduates to a group of employers who would, one by one, have exclusive rights to negotiate with each graduate. The graduate would have to accept employment with the employer that “drafted” him, or search for a job outside electrical engineering. No one would think that fair, but the public accepts such a practice for sports.

There is a way to treat athletes in revenue sports fairly: pay them competitive salaries, just as coaches and other employees are paid. The best players would receive higher pay than average players, just as more productive employees do in many occupations. As a result of competition, some of the revenue now controlled by athletic directors and the NCAA would be transferred to the athletes who have a critical role in generating it.

Of course, many fans enjoy college sports specifically because they are extensively regulated to maintain the facade of the noble scholar-athlete and minimize the money game. But NCAA rules don’t minimize as much as mask: competition for talent still exists, it just takes forms more esoteric and inefficient than cash transfers.

I doubt that a truly competitive labor market for student athletes would be beneficial for the University of Arizona. We lost promising recruits like Jeff Withey, Brandon Jennings, and Emmanuel Negedu even under the current rules, and we can probably thank the cartel agreement for absorbing some of the impact of Olson’s unexpected retirement. But scrapping the college cartel would certainly compensate student athletes much more fairly for their significant, largely unpaid contributions to sports prestige and university coffers. Anyone at the Social Justice Center care to take up the cause?

(via Marginal Revolution, photo via flickr user Lucian Teo)