Contradictory to the majority of polling, Republican Donald Trump is the new President-elect for the United States. Now comes the governing part of the equation. Will President Trump carry through on his promises, including the potential elimination of the Department of Education and, if so, what will it mean for FERPA? Let’s take a look at why such broad statements made during the election season may be difficult to follow through on in the real world.
Department of Education
“I mean, the Department of Education is massive, and it can be largely eliminated. Now, you maybe want to have a little bit of tentacles out there, make sure everything, — but largely, we can eliminate the Department of Education.”
Statements made by a politician during a campaign often can be over the top, and Donald Trump appears to be a particular wild card in this regard. Eliminating the Department of Education will likely be low on his “to do” list, but what if Mr. Trump and the Republican-controlled Congress actually followed through? The idea of eliminating a government agency may sound attractive to some, but accomplishing the task can be surprisingly complex.
The fate of the Department of Education may appear a somewhat esoteric topic given the focus of this website. Just the opposite is true, particularly when considering FERPA. Congress designates an agency to enforce most federal laws, including FERPA. In this case, the Department of Education is the party in question. If the Department of Education ceases to exist…you can see where matters could become a bit messy since not only would there be no enforcement agency, but there would be no readily apparent substitute given past litigation surrounding the law.
In 2002, the United States Supreme Court took up an appellate case [Gonzaga University v. Doe, 536 U.S. 273] involving FERPA that addressed a fascinating issue. Specifically, do individual students or their parents have the right to bring legal actions against a covered educational institution for FERPA violations? The Court found no such right exists, and went on to explain in dicta that as written, Congress had only authorized – you guessed it – the Department of Education to enforce the law.
If Donald Trump eliminates the Department of Education, FERPA becomes a train without a conductor. Privacy violations by educational institutions will go unpunished. Perhaps more concerning, private for-profit vendors could gather and sell personal student information with impunity. Congress would need to step in and either give authority to another agency to enforce the law or replace FERPA with new legislation. Either option is likely to take many months, if not years.
Will President Trump eliminate the Department of Education and throw FERPA compliance and enforcement into a state of chaos? It seems unlikely given how difficult taking such a step would be in a real-world scenario, but one never knows.
It is going to be an absorbing four years.
Richard Chapo, Esq.