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You Need To Understand Your Educational Privacy Rights

FERPA. Sounds like something you’d hear from a bullfrog or a burping baby. Instead, it stands for the Family Educational Rights and Privacy Act of 1974 (also known as the Buckley Amendment), which protects the privacy of students and their parents. As the National Association of Colleges and Employers (NACE) sums it up, FERPA “is designed to ensure that students and parents of students may obtain access to the student’s educational records and challenge the content or release of such records to third parties.” The law applies “to all schools that receive funds under an applicable program of the U.S. Department of Education.”

At its most basic, FERPA is designed to keep students’ educational records private ; institutions may not release a student‘s educational information to outsiders without the express permission of the student or parents. It’s important to remember the term “educational records” here because the definition is precise. For example, Penn State’s website lists what are considered education records:

Education records are defined as records, files, documents, and other materials that contain information directly related to a student and are maintained by Penn State or by a person acting for the University. Education records take many forms, including paper and electronic. Education records include:

Class lists
Student course schedules
Disciplinary records
Student financial records
Payroll records for employees who are employed as a direct result of their status as students (e.g., work study, assistantships, resident assistants)”

Penn State’s site also lists what are NOT considered “educational records” that may be released without the student‘s consent:

“Sole possession” records made by faculty and staff for their own use as reference or memory aids and not shared with others
Personal observations
University law enforcement records
Medical and mental health records used only for the treatment of the student
Alumni records
Peer-graded papers and exams prior to the grade being recorded in the instructor’s grade book

It’s also important to note that “law enforcement records” are not subject to FERPA limitations. The U.S. Dept. of Education states: “Law enforcement unit records” (i.e., records created by the law enforcement unit, created for a law enforcement purpose, and maintained by the law enforcement unit) are not “education records” subject to the privacy protections of FERPA. As such, the law enforcement unit may refuse to provide a parent or eligible student with an opportunity to inspect and review law enforcement unit records.” So an arrest while at college isn’t considered an “education record” subject to privacy laws. 

Under FERPA, schools may disclose without consent what is called “directory information,” which may include “a student‘s name, address, telephone number, date and place of birth, honors and awards, and dates of attendance. However, schools must tell parents and eligible students about directory information and allow parents and eligible students a reasonable amount of time to request that the school not disclose directory information about them.”

In each case, “consent” means “that a student‘s education records may be disclosed only with the student‘s prior written consent. The prior written consent must:

Specify the records to be released
State the purpose of the disclosure
Identify the party(ies) to whom disclosure may be made
Be signed and dated by the student.”

In most cases, any disclosure of student information must be to parties with “legitimate educational interest” in carrying out the institution’s mission with regard to the student. So a professor with concerns about a student‘s performance may be able to access that information.

FERPA also has a broad definition of “parent.” Its downloadable guide for parents states:

FERPA gives custodial and noncustodial parents alike certain rights with respect to their children’s education records, unless a school is provided with evidence that there is a court order or State law that specifically provides to the contrary. Otherwise, both custodial and noncustodial parents have the right to access their children’s education records, the right to seek to have the records amended, the right to consent to disclosure of personally identifiable information from the records (except in certain circumstances…), and the right to file a complaint with the Department.

Many institutions seem to interpret FERPA as blanket permission to refuse to release any of a student‘s records, but the Act deals explicitly with educational records. Some documents can be released without a student‘s express permission, including (as listed on the PSU site):

To University officials (including third parties under contract) with legitimate educational interests
To comply with a judicial order or lawfully issued subpoena
To appropriate parties in a health or safety emergency in order to protect the student or others
To parents in cases of drug or alcohol violation when the student is under the age of 21
To the provider or creator of a record to verify the validity of that record (e.g., in cases of suspected fraud)
To organizations conducting research studies on behalf of the University, provided there is a written agreement between the University and the research organization
To officials at an institution in which the student seeks or intends to enroll or is currently enrolled

Recent stories about fraternity hazing and student suicides on campus often note how university officials invoke or have FERPA hovering in the background, but in fact, these non-educational exceptions can be crucial in anticipating or dealing with emergency situations. An excess of caution about violating FERPA may be one problem as colleges wrestle with how much they should intervene with troubled students or how and when they should inform parents.

Officials at Hamilton College, where a student recently committed suicide, cited FERPA as a reason they didn’t inform his parents of his situation saying, “The law views students as adults and bars parents from even the most basic student records, like a transcript, without their child’s consent.” However, as the New York Times article notes, “Colleges can release any student record to parents if the student signs a consent, if the college knows that a parent claims the child as a dependent on tax forms, or in a health or safety emergency.” Although MIT was recently found not responsible for a graduate student‘s suicide, how much the institution has a “duty of care” remains an issue college are struggling with, and FERPA may not have all the answers. 

Colleges are often caught in a bind. They’re enjoined to keep students’ educational records private, which they often interpret to include other files, like medical records, we would typically want to keep private. Additionally, they no longer act in loco parentis, which gives students wide latitude in their behavior and limits what the institutions believe they can report to parents. Even if they wanted to communicate more with parents, colleges must decide how and when to report evidence of suicidal ideation or alcohol abuse and which person should be responsible for doing so. Too low a threshold for reporting would have schools and parents helicoptering each other; too high a bar could result in more tragic incidents that may or may not have been preventable.

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