Federal authorities have sought information from over 200 universities about Middle Eastern students, reported the New York Times, but Yale President Richard Levin said the government has not requested any Yale student or alumni records since Sept. 11.
Levin called such requests very unlikely and said the University would lobby hard against open access to student records.
After the Sept. 11 terrorist attacks, new legislation has raised questions about student privacy in higher education.
The Buckley Amendment of 1974, or Family Educational Right to Privacy Act, protects the privacy of student records. The USA Patriot Act recently amended the statute and made it easier for the government to obtain student records.
Yale General Counsel Dorothy Robinson said Yale occasionally receives subpoenas for student records and has since before Sept. 11.
“Unless the subpoena includes instructions to maintain confidentiality, Yale informs the student that the subpoena has been issued and that they have an opportunity to contest it,” Robinson said in an e-mail.
Robinson said federal law, the FBI and Yale policy allow disclosure without student consent if the FBI has a subpoena or if the University believes disclosure is required in response to a health or safety emergency — an emergency that federal authorities can bring to public attention.
Robinson said open access to student records is not even in discussion and added that she thinks the new law only marginally increases the government’s ability to obtain student records.
“The change in the law allows the attorney general or assistant attorney general to request a court order requiring a university to disclose records as part of the investigation or prosecution of terrorism,” Robinson said.
Levin said he also feels that federal agencies still have limited jurisdiction over student records.
“I think it is fairly limited, although we have heard of several schools,” Levin said. “It put the schools in a bind because some of the requests seemed to violate the protections of the Buckley Amendment.”
Levin said Yale would not turn over records without a clear ruling requiring the University to do so.
Harvard’s Kennedy School of Government denied a post-Sept. 11 request from the FBI for access to a former student’s record, said Jesus Mena, director of communications for the Kennedy School.
“We follow very strict protocol,” Mena said. “Certainly we are eager to cooperate in terms of FBI investigations, but we also require a subpoena.”
Mena said the Kennedy School has only received one inquiry.
Anita Allen-Castellitto, a visiting professor at the Yale Law School who specializes in privacy law, said the terrorist attacks of Sept. 11 have forced the nation to think about the relationship between privacy and accountability.
“For the most part, our nation’s officials have gotten the balance right,” she said. “However, there are some legal concerns about the extent to which the new laws [the Patriot Act] will be interpreted as broad permission for law enforcement to engage in more fishing expeditions and profiling than the average citizen would feel comfortable with.”
Allen-Castellitto said federal law regarding the privacy of student records leaves room for debate.
“It is unclear under the statute — whether a law enforcement official would have access to the student records,” Allen-Castellitto said. “But by no means is a blanket immunity given to law enforcement or the FBI.”
The tricky thing, Allen-Castellitto said, is exceptions governing when an institution can release academic records.
Allen-Castellitto said few students are aware that they can choose to have increased privacy.
“It is quite a long list what [information] they can give out,” Allen-Castellitto said. “If there are students at Yale who don’t want their information out, they have the right to contact the University.”
Allen-Castellitto said it was probably too late this year to exercise this option and only time will tell how the new laws may affect civil liberties.
“There is always a gap between what the law says can be done and what the CIA, etc. actually does,” Allen said.
Jean Hoffman ’03, co-chairwoman of the Yale branch of the Yale-New Haven ACLU chapter, said the Patriot Act threatens student privacy because law enforcement agencies are allowed access based only on certification that the records are relevant to an investigation.
“Student records contain personal and sensitive information,” Hoffman said. “Until the passage of the Patriot Act, these records had been held in the strictest confidence.”
History professor and Cold War expert John Gaddis said today’s concept of privacy and the confidentiality of records came out of abuses during the early stages of the Vietnam War.
“We have a long history of precedents of civil rights being violated or compromised during times of crisis like this — a history that goes back to the Civil War,” Gaddis said. “Finding the right balance is not easy.”