Freakonomics, The Apprentice, Student Grades, and Privacy
posted by Daniel Solove
The ending of this season’s The Apprentice (with Donald Trump) has everybody talking. Rebecca Jarvis and Randal Pinkett were the finalists, both of whom Trump thought were outstanding stars. He hired Randal and later asked Randal whether he should also hire Rebecca. Randal said “no” because “there can be only one Apprentice” and the show is called “the Apprentice, not the Apprenti [sic].” Ann Althouse has more details and extensive commentary here and here.
The buzz about The Apprentice finale has also reached the Freakonomics blog, one that I greatly enjoy. I was surprised when I read a post by Steven Levitt about Rebecca:
More important, I know a celebrity! Rebecca Jarvis, the runner-up, is my former student at University of Chicago. If I remember correctly, she got an A.
Far stranger than her being my student is that we also went to the same high school in the Twin Cities.
I’ll have to dig out her old exam and get her to autograph it for me.
My surprise was at the fact that he just revealed a student’s grade on the Internet. There is likely no actionable privacy law claim for such a disclosure (perhaps breach of confidentiality), and it would be odd for a student to sue over the disclosure that she got an A in a class and quite difficult to establish damages. Nevertheless, it strikes me as a lapse in judgment to reveal a student’s grade — even a good grade — over the Internet without first obtaining that student’s consent. Perhaps Levitt did obtain Rebecca’s consent, but as I read the post, it doesn’t seem likely he did. While Levitt’s infraction isn’t one I’m too worked up about, it does demonstrate the importance of having some self-restraint in blogging. It’s easy for all of us to dash off a post in haste without thinking of the implications.
Speaking of student grades, I’ve got a pile of exams I should be getting to . . .
December 18, 2005 at 12:51 pm
Posted in: Privacy
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Responses (9)
Bruce - December 18, 2005 at 3:13 pm
It’s theoretically a violation of FERPA, 20 U.S.C. sec. 1232g(b), but only if part of a “pattern or practice” by the educational institution; one post by one professor seems unlikely to qualify. There is no private cause of action for violations; enforcement is limited to cutting federal funds, and is left to the Secretary of Education: “The Secretary shall take appropriate actions to enforce this section and to deal with violations of this section, in accordance with this chapter, except that action to terminate assistance may be taken only if the Secretary finds there has been a failure to comply with this section, and he has determined that compliance cannot be secured by voluntary means.”
anon prof - December 18, 2005 at 6:50 pm
How about this one. You meet a practicing lawyer who says, “hey, your student Sally Smith interned with us this summer. She did terrific.” I always have the urge to tout my good students but feel that I can’t say “she earned a top grade,” even though I assume that the law firm already has her transcript and that she’s readily approve of my making that comment. So I don’t mention that.
What’s your instinct on this, Dan? In that situation, is there implied consent if my comment would be strongly positive? I err on the side of caution but feel bad about tempering my praise.
Daniel J. Solove - December 19, 2005 at 12:13 am
Anon prof,
That’s a tough question. It would seem that most students would consent to being praised as a top student, and in the case you indicate, it could help the student out in her career. Perhaps the best thing to do is to indicate that the student was an excellent student but not reveal the student’s grade. This might strike some as a bit formalistic — that it’s ok to say that a student was a great student in your opinion but not ok to reveal the specific grade the student received. But I think there is a difference. A professor’s opinion about a student is different from a grade, which is a formal entry on the student’s record.
There’s also a difference, I believe, between your scenario, in which the context seems to justify the assumption of implied consent, and the disclosure of a grade on a widely-read blog.
SupplySider - December 19, 2005 at 9:26 am
I’d like to see the law carve out an exception for students who attend public universities. When tax dollars subsidize students’ tuition and pay directly for capital improvements to and operating expenses of the schools, student grades should be a matter of public record.
Bruce - December 19, 2005 at 1:26 pm
SupplySider, should they have cameras in the bathrooms too? After all, your tax dollars paid for those bathrooms.
ray - December 20, 2005 at 6:12 pm
all private colleges and universities are subsidized by tax dollars as well.
Prince Akbar - December 20, 2005 at 9:06 pm
Someone tell me what is it about Rebecca that justifies calling her true “competition” to Dr. Pinkett. She was 1-2. He was 3-0 on the show. She has a BA degree from an average college University of Chicago. He has 5 degrees including 3 from one of the toughtest colleges in the world, MIT. She has 2 years work experience. He has 13 years experience as an entreprenuer, the most recent ventures is a multimillion dollar consulting firm. She broke an ankle that heals. He lost a grandparent FOREVER. Why all the sympathy for such a below average, sub par, barely out of college simpleton? Also, Trump boasts about her loyalty to Toral. Yet he said nothing of Kwame’s loyalty to Omarossa? Double Standards. He also fired 4 people for not rising a dime of money, and he acts kind to her after she raised NOTHING for charity! Had Dr. Pinkett been white, and Rebecca been black, this would not even be a conversation right now. Funny what race believes in handouts now.
Student News Blog - February 28, 2006 at 8:24 am
Growing future college students
They’re busy finishing homework, listening to a story, playing games and talking to tutors in their after-school program at the Packer Community Learning Center. By the time these grade-schoolers finish high school, their tutors hope, they’ll be read…
Jennifer - June 8, 2006 at 10:47 pm
The University of Chicago an average college? Watch it Prince, your education is showing……
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