Recommendation Letters and the Law

Faithful readers of The Chronicle of Higher Education will realize that academia is increasingly becoming a litigious arena. Faculty members sue their schools over tenure denials; students sue universities over a flap about objectionable website photos; universities sue students for blogging unfavorable comments about administrators. Two of my favorite cases were in 1994, when a University of Idaho student tried to sue after crashing through a third-story window while mooning his friends (4), and two Pace University students sued because they found a class they had enrolled in to be too hard (5). The badly injured mooner sought nearly half a million dollars per cheek (but the judge turned his back), while the Pace University students initially won $1,000 apiece plus couerse tuition reimbursement, but a New York appeals court later overturned the decision.

More to the point, in one of the few instances of legal action over evaluative letters, in a case involving the University of Missouri Medical School, the US Supreme Court upheld that a fourth-year medical student could be dismissed from school as a result of written evaluations criticizing the student’s erratic attendance at clinical sessions, poor interpersonal skills, and lack of “a critical concern for personal hygiene” (6). However, in another case, the University of Pennsylvania failed at repeated attempts to retain sole access to the complete tenure file documents of six faculty, which were requested in a claim of sex and race discrimination (7). In this case, then, letter confidentiality was not supported. Several other legal cases involving faculty letters emerged in the 1990s and 2000s, and the initial rulings in these cases were sometimes overturned on appeal.

Though these legal cases involved faculty and grad students, most letter writers have some sense of worry—often a vague one—of potential legal issues involved in writing letters for undergrads as well. Though actions taken against letter writers are rare, many faculty write letters with a nagging, even if unfounded, fear of legal action, and it certainly influences what they write. In fact, one study of 150 faculty at 150 schools found that “more than half agreed that letters frequently are inflated because writers fear legal retribution for negative comments” (8).

To sort through this problem and consider the relevant issues squarely, we can examine how confidentiality impacts letters and explore the legal interpretations of FERPA (Family Educational Rights and Privacy Act).

The Influence of Confidentiality on Letter Writing

Not surprisingly, studies find that confidential letters contain comments about students that are less favorable than those in open access letters. However, reviewers of letters are also more likely to trust the information when they know that students have waived their access rights (10, 11). In plain terms, everyone is more comfortable when a student opts for a confidential letter, and such a letter will also likely be perceived as more trustworthy. A 2001 article in the journal Academic Emergency Medicine put the matter succinctly: “Knowledge of a candidate’s potential viewing may bias the candid and honest authorship of an accurate letter” (12). Thus, we typically urge students to waive their access rights, and we can do so confidently by assuring them that this is the standard practice held in much higher favor by schools and selection committees.

FERPA’s Impact on Student Records

Also known as the Buckley Amendment, the Family Educational Rights and Privacy Act (FERPA) of 1974 spoke to the issue of the confidentiality of students’ personal and academic records. Under this Act, personal “directory” information about students such as their name and phone number—even their date and place of birth—may be disclosed without a student’s permission.

FERPA also gave students both the right to inspect letters written about them and the option of waiving access. This waiver of access, in effect, takes away the student’s right to see the letter and protects the recommender’s right to offer subjective commentary, as long as the letters are used “only for the purposes for which they were intended” (9). If over-analyzed, this document seems to create something of an “access tug of war” between student and writer, and it’s unclear which party has the most responsibility to establish access rights, but in practice the standard is clear: Students seeking a letter of recommendation are typically asked to sign a statement waiving their access rights to the letter, usually right on the letter request form itself.

Increasingly, in the context of recommendation letters, some schools interpret FERPA and its amendments to mean that a letter writer cannot reveal certain academic records without written permission, specifically the following:

• the names of courses taken;
• the grade received in a particular course;
• class rank;
• GPA.

For letter writers, of course, such restrictions can be inconvenient or even seem downright silly. As opposed to revealing, say, a student’s Social Security number, which has obvious ethical and financial complications, revealing a student’s grade in a course is one of the best and easiest ways to praise the student. Therefore, many writers simply include such information without concern for FERPA regulations, trusting that there will be no repercussions from the student.

Whatever your past habit has been, the best practice is obviously to ensure that the student has signed a written statement waiving access rights, and schools are increasingly detailing exactly what that statement should include. As one example, the University of Utah provides students with a “Permission To Release Education Record Information” form, including the student name and ID number and the following statements:

I give permission for ______ to write a letter of recommendation on my behalf, and for the purpose of ________. This letter can include the following information:

 

Please check all that apply:

 

    □ Grades    □ GPA   □ Class rank

 

Please send letters of recommendation to: __________.

 

I waive my right to review a copy of this letter of recommendation now and in the future.

    □ Yes        □ No

As another example, a professor from the University of Minnesota has crafted a "Student Reference Request Consent Form"—a checklist covering everything from the purpose of the reference to permission to provide an evaluation of academic performance to a waiver of access rights.  I like this form in particular because it teaches the student about protocol.

Even if overly detailed for the tastes of some, these approaches do seem prudent in relation to FERPA and how schools are interpreting it. Also prudent is to check with your academic institution as to its specific policy regarding recommendation letter access. This policy might be more obviously aimed at students rather than at faculty, so a bit of digging may be necessary. However, with the policy usually directly tied to FERPA, doing a search for references to FERPA on your school’s website is a good beginning.