866.395.7100 tlolawfirm.com

When FERPA and the First Amendment Clash on Campus

Presented byCarol LoCicero

Lessons learned from AP v. NCAA

The Scandal

Florida State University. 61 student athletes in an online music course.Widespread cheating. Academic fraud.

The Punishment

NCAA stripped FSU of all wins in which the guilty athletes played.

It was a sanction the university had not expected.

The Consequences

Who would have the most wins to become the winningest coach in college football?*

Bowden v. Paterno

*With the sanctions, Bowden’s legacy was at risk.

The Appeal

FSU doesn’t challenge its guilt.It challenges the punishment.

The media had access to the records

until…

With the appeal, media requests to view the NCAA

appellate brief are suddenly and shockingly denied.

“Cyber

confidentially

pact!”

FSU – NCAA Sanctions Appeal

“Such conduct shall be reported to the

applicable state bar authorities…failure to adhere…could result

in civil or criminal actions”

On behalf of 27 media entities, Thomas & LoCicero filed suit against the NCAA, FSU and Gray Robinson (FSU’s attorneys)

AP v. NCAAThe fight for access to the records leaves us with no other alternative.

We focused on the illegal custodial website

Public vs. Private

If the NCAA got away with a custodial website, it would be a dangerous development.

FSU forced us to litigate FERPA.

“FERPA!” is invokedto shield a variety of university activities.

Does it have to be directly related to a student, and not just tangentially related to a student?

Is every record that mentions a student secret under FERPA?

OR

(Describing the consequences if NCAA/FSU records were found to be public records…)

Volume 1 of 2 | Transcript of Proceedings | August 20, 2009

Leon County Courthouse | Tallahassee, Florida

“…I believe that would rip the heart out of the NCAA.” - Samuel David Berst, Jr., Vice-President for Division I, NCAA

The Verdict

1. The records reviewed by FSU’s lawyers were public records.

2. The confidentiality agreement was void and didn’t shield the records.

3. They weren’t exempt student records.

The media was entitled to recover its attorneys’ fees from FSU and the NCAA.

and…

make sure the record at issue really is directly related to a student.

Before invoking FERPA,

866.395.7100 tlolawfirm.com

Thank you.

A copy of this presentation and documentation is available atslideshare.net/ThomasLoCicero