Michael Cohen is Taking His Understanding of FERPA to Prison Today.

Michael Cohen, former lawyer and “fixer” for Donald Trump is due to report to prison today. You may wonder—how does this merit mention in the Daily Dawg, which is about school law? Good question. The answer is: Mr. Cohen’s previous correspondence on behalf of his client gives us an opening to discuss FERPA—the Family Educational Rights and Privacy Act.

After his relationship with the president went south, Mr. Cohen published a letter he had written on behalf of Mr. Trump to Fordham University in May, 2015. Mr. Trump attended Fordham for his first two years of college before transferring to the Wharton School. There have been rumors that he did not make Fordham great again, and may have even flunked out. We may never know. In any event, some media outlets were seeking Mr. Trump’s educational records. Mr. Trump zealously guarded the confidentiality of his educational records. In fact, his lawyer/fixer was a bit overly zealous.

In his letter, Mr. Cohen claims that FERPA violations may expose Fordham to “both criminal and civil liability and damages, including, among other things, substantial fines, penalties and even the potential loss of government aid and other funding. The criminality will lead to jail time.”

That is wrong on many counts, but the scariest part is “including, among other things.” I mean once the federal funding is gone, the fines and penalties are imposed, damages are assessed and the president of the university is in jail, there are “other things”???? Like what? Your house gets egged? You wake up with a decapitated horse head in your bed?

The letter promises to pursue claims for damages and “criminality” if there is any FERPA violation, and this applies to “any and all of The College Board’s employees, agents, third parties, vendors and any other person or entity acting for or on its behalf.” Yikes! Everyone is going to jail!!

What’s accurate about the letter? FERPA violations can lead to loss of federal funding. It’s never happened, but it could. That’s the only remedy. The Supreme Court has held that FERPA does not permit a “private cause of action.” See Gonzaga University v. Doe (2002). So you cannot obtain damages and there are no fines or penalties. And for sure, no one is going to the clink over disclosure of a confidential educational record.


Tomorrow: Toolbox Tuesday!!