The NAACP Is Hitting Back At UK Over Racism

The NAACP is definitely hitting back at the University of Kentucky over allegations of racism at the medical school.

The latest? This letter sent to UK on December 18:


Text of the letter:

Dear Mr. Swinford,

This letter is a follow-up to your response dated December 6, 2012. This response is to a letter from the Lexington-Fayette County NAACP Unit #3097 to the University of Kentucky’s Office of Open Records requesting the following information:

  1. Number of black medical students admitted to University of Kentucky Medical School between 2004-2009
  2. Number of black medical students who discontinued their medical education at University of Kentucky due to dismissal, academic failure or transfer to another institution between 2004-2009
  3. Number of black medical students who spent in excess of 4 years to graduate from medical school between 2004-2009
  4. Number of black medical students within-state residency status who were matriculated between 2004-2009

Contrary to your contention, the information that we have requested is most definitely a public record, and clearly falls under the Kentucky Open Records statute’s definition of a public record, and as a public agency you are therefore required to furnish it. Additionally, FERPA protection does not apply to the records we’ve requested.

According to the Kentucky Open Meetings and Open Records Laws Statutes and Q&A, on page 15, “public records” is defined as follows:

“(2) “Public record” means all books, papers, maps, photographs, cards, tapes, discs, diskettes, recordings, software, or other documentation regardless of physical form or characteristics, which are prepared, owned, used, in the possession of or retained by a public agency.”

Clearly, Mr. Swinford, the information we have requested falls under the category of “documentation regardless of physical form or characteristics which are prepared, owned, used, in possession of or retained by a public agency.” The information we have requested, which is documentation in the University’s possession of the records of the numbers of black medical students admitted, retained, etc. for specific time frames, is therefore by the statute’s own definition a public record.

Furthermore, your contention that the records we requested are protected by FERPA and is “student protected information” is also false. As you know, FERPA protects students’ “personally identifiable information” and education records from unauthorized disclosure. But we have not asked for any education records for specific students, nor have we requested any personally identifiable information — which the FERPA statute defines as information that “along or in combination, is linked or linkable to a specific student that would allow a reasonable person in the school community, who does not have personal knowledge of the relevant circumstances, to identify the student with reasonable certainty.” (34 CFR § 99.3). To the contrary, we have simply asked for statistical data, which FERPA clearly allows. According to the web site, records not considered as educational records and thus not protected under FERPA include: “Statistical data compilations that contain no mention of personally identifiable information about any specific student.” This is exactly what we have requested, and it clearly does not relate to the education records of specific students and is therefore not protected by FERPA.

You also state that the “total numbers of students in your request is so small, there is potential for students to be identifiable.” According the FERPA statute, whether or not the information we requested pertains to 10 students or 10,000 students is irrelevant as long as we are requesting “statistical data compilations” and looking at numbers and not personal information, Furthermore, there is no way for a “reasonable person” to know what individuals those numbers represent. Even if there were just a handful of students under a certain category of a record we’ve requested, that is irrelevant according to the section of the statute stated above, since “student protected information” is only that information that could be “linked or linkable” to a specific student in a way that would allow “a reasonable person in the school community, who does not have personal knowledge of the relevant circumstances” to identify a student “with reasonable certainty.” Obviously, there is no way we or any other “reasonable person in the school community who does not have personal knowledge of the relevant circumstances” could look at the numbers we’ve requested and “identify a student” with any kind of “reasonable certainty.”

In conclusion, since we are not requested anything about a specific student, but instead are asking for “statistical data compilations” not protected by FERPA, and since those statistical records fall under Kentucky Open Records definition of a public record, and since the University of Kentucky is clearly a public agency (see below) from which we can request records, you are required to furnish the records we’ve requested.

Definition of a public agency: f) Every state or local government agency, including the policy-making board of an institution of education, created by or pursuant to the state or local statute, executive order, ordinance, resolution, or other legislative act; (Pg. 14, Kentucky Open Meetings and Open Records Laws Statutes and Q&A,).

Flora D. Mitchell

If UK continues to deny the requested records, the next step will be to appeal to the Office of the Attorney General. The AOG is likely to deny the request whether it’s legal or not because of ties to UK. At that point, the NAACP is expected – according to people close to the situation – to file suit. And by “expected”? We mean the suit is already drafted and waiting to be filed.