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Ely, Counselor at Law
Category: Employment Law
Satisfied Customers: 102146
Experience:  Years of experience in running a medium sized law firm.
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I was up job that required me to compile all my background

Customer Question

I was up for hire for a job that required me to compile all my background information and provide it to the interviewers. I contacted my University to get my disciplinary records, and they told me that I had a certain amount of disciplinary issues, but there was a report that they never disclosed to me that I did not know about. This report, of which I had zero idea, caused me to be disqualified from the job process, and I lost out on getting the job. I still have been unable to obtain the record from my University, as they will not provide it to me.
Do I have a viable claim against the University for this?
Submitted: 1 year ago.
Category: Employment Law
Expert:  Ely replied 1 year ago.

Hello and welcome to JustAnswer. Please note:This is general information for educational purposes only and is not legal advice. No specific course of action is proposed herein, and no attorney-client relationship or privilege is formed by speaking to an expert on this site. By continuing, you confirm that you understand and agree to these terms.

I am sorry to hear about this situation.

Someone in your situation may have a case, but it is for a different reason than you may think.

Under the Family Educational Rights and Privacy Act of 1974, the student (current or former) has a right to inspect and review his or her educational records and request to amend his or her educational records.

Upon written request, the university has to provide a student access to their educational records (except for financial records of the student's parents or guardian; and confidential letters of recommendation where the student has signed a waiver of right of access). This includes disciplinary records. These records are generally also not allowed to be shared with third parties without the student' consent.

While student disciplinary records are protected as education records under FERPA, there are certain circumstances in which disciplinary records may be disclosed without the student's consent. A postsecondary institution may disclose to an alleged victim of any crime of violence or non-forcible sex offense the final results of a disciplinary proceeding conducted by the institution against the alleged perpetrator of that crime, regardless of whether the institution concluded a violation was committed. An institution may disclose to anyone—not just the victim—the final results of a disciplinary proceeding, if it determines that the student is an alleged perpetrator of a crime of violence or non-forcible sex offense, and with respect to the allegation made against him or her, the student has committed a violation of the institution's rules or policies. See 34 CFR §§ 99.31(a)(13) and (14).

So keeping all this in mind, it would be arguable to say that the university violated FERPA by not allowing one to see the disciplinary records, and/or to challenge them. Now, FERPA itelf does not allow a student to sue for violagions, but many peope get around this fact by suing for negligence per se, which is a common law action that has Plaintiff sue Defendant for Defendant violating a statutory law meant to protect Plaintiff.

Also, if the records are false, then an added cause of defamation may be included in the suit.

I hope this helps and clarifies. Please use the SEND or REPLY button to keep chatting, or please RATE when finished. You may always ask follow ups at no charge after rating. Kindly rate my answer as one of TOP THREE FACES/STARS and then SUBMIT, as this is how experts get credit for our time. Rating my answer the bottom two faces/stars (or failing to submit the rating) does not give me credit and reflects poorly on me, even if my answer is correct. I work very hard to formulate an informative and honest answer for you; please reciprocate my good faith with a positive rating.

Customer: replied 1 year ago.

What would the damages be if a lawsuit was filed? And what is the statute of limitations on this?

Expert:  Ely replied 1 year ago.

For negligence per se, the damages may be the loss of income so it becomes very subjective (if one can show that the only reason denied was this violation under FERPA).

If there is defamation, then punitive damages may apply as well, which is a wild card and can be any amount the Judge/Jury may see fit.

I believe the statute of limitations for negligence per se is 2 years in NJ. However, this depends on many factors and the answer may differ.

For defamation, it is 1 year.

Gentle Reminder: Please, use REPLY or SEND button to keep chatting, or RATE POSITIVELY and SUBMIT your rating when we are finished. You may always ask follow ups at no charge after rating.

Expert:  Ely replied 1 year ago.

Hello again. This is a courtesy check in to see if you needed anything else in regards ***** ***** question. I am simply touching base. Let me know. Thanks!

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