Questions arise from Evergreen Subpoena

author : Mike Coday topic : Dead Prez concert | Gag Order Subpoenas

by Mike Coday

In the aftermath and investigation of the civil disturbance at the Dead Prez concert at The Evergreen State College (TESC) in Feb. 2008, TESC Registrar Andrea Coker-Anderson was served with a subpoena to turn over student records to law enforcement (as previously reported in Works in Progress). The subpoena included a non-disclosure clause that ordered the college not to disclose the subpoena and information request for 90 days. TESC complied with the subpoena and released information on 13 students that included photo identification.

Associate Vice President for Enrollment Steve Hunter revealed the subpoena and the release of student information, including photo identification, to students and staff through email on May 30 and stated: “The College is bound by law to provide the information requested by subpoena. The Family Education Rights and Privacy Act (FERPA) permits disclosure, without consent, from a student's records in order to comply with a lawfully issued subpoena. Our standard policy for such requests is to notify the student that a request has been made and to allow seven days for the student to determine if he or she wishes to take action to suppress the subpoena in court before the subpoenaed information is provided. Because of the non-disclosure statement in this subpoena, the College was required to supply the information requested and to remain silent regarding the request until 90 days had passed.”

FERPA does in fact authorize the release of student information in response to a subpoena without advance notice to students. But FERPA is not the the only set of rules that TESC is expected to follow. When asked to provide a copy of the college's policy on compliance with subpoenas, the TESC Internal Auditor Maryam Jacobs identified WAC 174-280-030 as the TESC policy.

WAC 174-280-030 reads:

Release of personally identifiable records.

(1) The college shall not permit access to or the release of education records or personally identifiable information contained therein, other than "directory information," without the written consent of the student, to any party other than the following:

(f) Any person or entity designated by judicial order or lawfully issued subpoena, upon condition that the student is notified of all such orders or subpoenas in advance of compliance therewith [emphasis added]. Any college individual(s) or office(s) receiving a subpoena or judicial order for educational records should also immediately notify the assistant attorney general assigned to Evergreen;

“Directory information” is defined in FERPA and on the TESC website and does not include photo identification. This WAC simply does not provide for release of student records beyond directory information without advance notice to the student.

Several questions remain unanswered:

● Did The Evergreen State College violate its policies (WAC 174-280-030 (1.)(f) when it complied with the subpoena without providing advance notice to the student targets of the subpoena?

● Did the College fail to fulfill its obligations to the student targets of the subpoena when it chose full compliance as allowed under FERPA instead of challenging the non-disclosure clause of the subpoena and citing the WAC that requires advance notice to students?

● Did the College act to deprive the students of their due process rights when it failed to provide the students with notice of the subpoena before turning over student records to law enforcement?

● Is there any accountability or penalty if TESC violated its policies in disclosing student information without advance notice to the students?

At deadline, TESC administration have not responded to questions about the possible violation of this WAC.