Alerts and Updates

Employment and Privacy Law Developments: Racial Association Under Title VII and Proposed FERPA Regulations

April 10, 2008

Second Circuit Construes Title VII to Include Discrimination on the Basis of Association: Holcomb v. Iona College

In a case of first impression before the U.S. Court of Appeals for the Second Circuit, the court held that an employer may violate Title VII if it takes action against an employee because of the employee's association with a person of another race.

Factual Background

According to the Second Circuit, in 1995, Craig Holcomb, who is white, was hired as an assistant coach of the Iona Gaels men's basketball team and, in 1998, became the top assistant to head coach Jeff Ruland, also white. In 2000, Holcomb married Pamela Gauthier, a black woman. In 2001, Ruland began a relationship with Iris Hansen, who is also African-American and a friend of Gauthier. During much of his tenure with the Iona Gaels, Holcomb worked alongside two other assistant coaches — Tony Chiles, who is black and Rob Driscoll, who is white and the most junior of the three assistant coaches.

Iona College terminated Holcomb and Chiles in 2004, explaining that their terminations were based on poor job performance. On the court, the team's record had declined over the years, from an impressive win-loss tally of 74-50 from 1997 to 2001, to a lackluster record of 41-47 from 2001 to 2004. Iona College also failed to qualify for the NCAA tournament in 2002, 2003 and 2004. Notwithstanding the basketball program's deteriorating record, Holcomb contended that his termination was based largely on improper racial motives of two decision makers — Shawn Brennan (the Director of Athletics) and Richard Petriccione (a Vice President of the College). Specifically, Holcomb claimed that Brennan barred Holcomb's wife and certain high school students, many of whom were African-American, from attending events of Iona College's "Goal Club," which is the school's alumni fundraising and social organization. In addition, Holcomb claimed that Brennan and Petriccione made offensive racial comments about black players in the basketball program. Holcomb further asserted that Petriccione made racially derogatory comments about a woman in the alumni office and used a racial epithet to describe Holcomb's wife on at least one occasion. Holcomb brought suit on January 25, 2005, in the U.S. District Court for the Southern District of New York. The district court concluded that, even if Brennan and Petriccione had engaged in racist conduct, the plaintiff had not established any facts linking the alleged conduct to his termination.

The Decision

On appeal, the Second Circuit vacated the District Court's judgment and remanded the case for further proceedings. As a threshold matter, the court noted that the burden of establishing a prima facie case of disparate treatment "is not onerous" and that a plaintiff must demonstrate only that he (1) belonged to a protected class; (2) was qualified for the position he held; (3) suffered an adverse employment action; and (4) the adverse employment action occurred under circumstances giving rise to an inference of discriminatory intent. With respect to the first factor and in a determination of first impression for the Second Circuit, the court held that an employer may violate Title VII if it takes action against an employee because of the employee's association with a person of another race, in this case, the plaintiff's wife. In so holding, the Second Circuit declined to follow the decisions of other courts that have held that such claim cannot stand because the plaintiff is not alleging discrimination motivated, in the words of Title VII, "because of an individual's race." Rejecting the reasoning of other courts, the court stated that where an employee is subjected to adverse action because an employer disapproves of interracial association, the employee suffers discrimination because of the employee's own race.

The court further found that the plaintiff had satisfied the minimally low threshold of establishing that Holcomb was terminated under circumstances that gave rise to an inference of unlawful discrimination. In so holding, the court noted that the college decided to terminate Holcomb, a white man married to a black woman, and Chiles, a black man, while retaining O'Driscoll, a white man who was not in an interracial relationship. While it was apparent that the decision to keep Ruland was largely based on financial reasons, including an eight-year contract that he signed in 2001 for a $300,000 yearly salary, there was no contemporaneous record for retaining O'Driscoll while firing Holcomb and Chiles. Moreover, for both Brennan and Petriccione, Holcomb had demonstrated evidence of racially improper motives. The fact that the college decided to keep Ruland, who was also in an interracial relationship, did not allay the suspicion that the firings were grounded in an illegitimate motive since, as determined by the court, Ruland was simply too expensive to fire.

What This Means for Employers

Employers should be mindful that circumstantial evidence is enough to satisfy a plaintiff's burden of demonstrating racially discriminatory intent and that plaintiffs are not required to produce "smoking gun" evidence. In "mixed motive" cases, such as Holcomb, the plaintiff does not have to show that racial discrimination was the sole reason for the plaintiff's termination, only that it played a role in the decision. Finally, the Second Circuit has made clear that an employer will violate Title VII if it takes action against an employee because of the employee's association with a person of another race.

Proposed Regulations Under the Family Educational Rights and Privacy Act Address Access to Student Information

The Family Educational Rights and Privacy Act (FERPA) applies to all public and private educational institutions that receive funding from the U.S. Department of Education and conditions these institutions' receipt of funds on their compliance with its provisions. It provides parents with access to students' education records and requires written consent before release of such records to third parties. These rights transfer to students once they have attained 18 years of age or upon their attending a post-secondary institution.

On March 24, 2008, the Department of Education released its proposed regulations to FERPA. The Department of Education seeks to accomplish three main goals with these regulations: (1) to implement provisions of the USA Patriot Act and the Campus Sex Crimes Prevention Act, which amended FERPA, (2) to reference recent U.S. Supreme Court decisions interpreting FERPA, and (3) to respond to changes in information technology and make necessary changes identified in the Department's administration of the Act and its current regulations. The proposed regulations discussed herein are among those that, if adopted, will have a significant impact on the operations of educational institutions. Although important, it should be noted that these proposals are currently open to commentary and are subject to modification until formally adopted.

Access to Education Records by School Officials

Under FERPA, educational institutions may allow teachers and other school officials within the institution to access education records without prior written consent if the institution has determined that the teacher or official has "legitimate educational interests" in the information. The current regulations require institutions that disclose student information under this provision to specify such disclosure in their annual FERPA notification. However, the current regulations make no provision to ensure that teachers and officials who access education records in fact have "legitimate educational interests."

The proposed regulations affect the current provisions in two significant ways: First, the proposed regulations expand the scope of the term "school official" to include contractors, consultants, volunteers and other outside parties to whom the institution has outsourced services. Second, the proposed regulations require educational institutions to take affirmative steps in implementing "physical, technical, administrative, and operational controls" to ensure that teachers and other officials can access education records only where they have "legitimate educational interests" in obtaining such access. The Department's reasoning in proposing the latter proposal reflects the increasing trend among institutions to use computerized or electronic recordkeeping systems, which run the risk of providing unrestricted access to users.

Identification and Authentication of Identity

FERPA prohibits educational institutions from releasing, allowing release of, or providing access to students' personally identifiable information from education records without written consent, except where specifically permitted by statute. The current regulations do not address an institution's obligation to ensure that it has properly identified the recipient of personally identifiable information from education records.

The proposed regulations require institutions to use reasonable methods to properly identify and authenticate the identity of parties to whom personally identifiable information in education records is released. The proposals note that the main challenge of identifying proper recipients arises in the context of electronic and telephonic requests for education records. As for authentication, instead of allowing the release of education records upon a requester's recital of widely available information, such as a student's name and date of birth, or name and Social Security number or student identification number, the proposed regulations require institutions to confirm the identity of a requesting party by eliciting information that only the proper user would know, such as a pin, password or answer to a personal question.

Health and Safety Emergencies

Under FERPA, an educational institution may disclose personally identifiable information from a student's education records in connection with an emergency where such information is necessary to protect the health or safety of the student or another individual. The current regulations state that education records may include information regarding disciplinary action taken against a student for conduct that posed a significant risk to the safety or well-being of that student, another student or another member of the school community. Educational institutions may disclose such information to teachers and other school officials within the institution or in other educational institutions if they have "legitimate educational interests" in the behavior of the student. These provisions in the current regulations are to be strictly construed.

The proposed regulations, advanced in the wake of the school shootings at Virginia Tech, remove the language from the current regulations requiring strict construction of the exception that allows disclosure of such behavioral information. The proposed regulations also provide for institutions to consider the totality of the circumstances in determining whether there exists an "articulable and significant threat to the health or safety of a student or other individuals." If such a threat exists, the institution may disclose information from education records to "any person whose knowledge is necessary to protect the health and safety of the student or other individuals."

In Addition, the Proposed Regulations:

  • Expand the term "attendance" to include attendance by videoconference, satellite, Internet and other electronic information and telecommunication technologies.
  • Provide that educational institutions cannot specify students' Social Security numbers or student identification numbers as "directory information." However, directory information can include unique identifiers for students, so long as such identifiers cannot be used by themselves to authenticate identity and gain access to education records.
  • Include "biometric record" as a personal identifier and set forth additional indirect identifiers, such as a student's date and place of birth, as well as mother's maiden name.
  • Provide objective standards under which educational institutions can release education records without written consent of students by de-identifying the records through redaction of all personally identifiable information.
  • Clarify that an educational institution may disclose education records to the parents of an eligible student, i.e., a student who has attained 18 years of age or who is attending a post-secondary educational institution, without the consent of the eligible student if the student is a dependent for federal income tax purposes, in the context of a health or safety emergency, where a student under the age of 21 has violated a drug or alcohol policy, or in compliance with a court order or subpoena.
  • Clarify that the term "education records" with regard to a former student excludes records created or received by the educational institution after the individual is no longer a student if the records are not directly related to the individual's attendance as a student. However, a record that is created after a student is no longer in attendance may still be deemed an education record if it is directly related to the individual's previous attendance as a student.

What Does This Mean for Educational Institutions?

The Department of Education's proposed regulations for FERPA reflect a careful balance between disclosure and privacy. The Department acknowledges the increasingly global reach and technological character of the country's educational institutions. As such, it proposes a broader scope of qualified school officials who may access education records. Similarly, in establishing a platform to advance national preparedness for school violence, the Department proposes additional avenues for the disclosure of student information. However, in an effort to preserve and strengthen the underlying purpose of FERPA, the Department proposes mechanisms to identify and authenticate recipients of education records. It proposes stringent regulation of students' Social Security numbers and student identification numbers to reduce the risk of identity theft. The proposed regulations require institutions to ensure that school officials with access to education records establish a "legitimate educational interest" for such access. Together, these proposals provide a comprehensive effort to confront the challenges faced by educational institutions today.

Educational institutions should be aware of the proposed regulations and stay tuned to further modifications or adoption of such regulations. If the proposed regulations are adopted, educational institutions will be required to use reasonable methods to reduce the risk of unauthorized disclosure to a level "commensurate with the likely threat and potential harm." Of course, mandated compliance with such regulations will depend on the institution's size and its available resources.

The attorneys in the Employment and Immigration Practice Group at Duane Morris LLP regularly review educational institutions' policies and guidelines and their compliance with FERPA.

For Further Information

If you have any questions about this Alert or would like more information, please contact any member of the Employment & Immigration Law Practice Group or the attorney in the firm with whom you are regularly in contact.

Disclaimer: This Alert has been prepared and published for informational purposes only and is not offered, nor should be construed, as legal advice. For more information, please see the firm's full disclaimer.