Student Privacy Laws: How to Control Who Sees Your Educational Records

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Recognizing the sensitivity of education information, the United States Congress enacted the Family Educational Rights and Privacy Act (FERPA) in 1974.

FERPA (20 U.S.C. § 1232g; 34 CFR Part 99) serves as a cornerstone for safeguarding the privacy of students’ educational records. It applies to nearly every educational institution across the nation, from elementary schools to universities, both public and private, provided they receive federal funding under any program administered by the Secretary of Education. Often referred to as the Buckley Amendment, FERPA establishes fundamental principles regarding access to and disclosure of student educational records.

At its core, FERPA grants parents and eligible students certain rights over their education records while also protecting the privacy of this information from unauthorized disclosure. The law sets forth guidelines for when and how schools can disclose personal information without consent and provides a framework for managing what is known as directory information.

It empowers individuals with the right to seek corrections to any information within their educational records that they believe to be inaccurate or misleading. This dual purpose of granting access and protecting against disclosure underscores the careful balance FERPA aims to achieve between transparency and privacy in the educational sphere.

The protections afforded by FERPA extend to currently or formerly enrolled students, irrespective of their age or whether they are claimed as dependents by their parents. Once a student reaches the age of 18 or begins attending a postsecondary institution at any age, the rights under FERPA transfer from the parents to the student, who is then considered an “eligible student”. For students under 18, these rights are primarily held by their parents.

What Exactly is an “Education Record” Under FERPA?

At the heart of FERPA’s protections lies the definition of an “education record.” According to the law, an education record is any record maintained by an educational institution that is directly related to a student and can personally identify that student or a group of students. This definition is intentionally broad and is not limited by the format in which the record is maintained. Whether it’s a handwritten note, a printed document, an email, a computer file, a video or audio recording, or even microfilm, if it contains personally identifiable information about a student and is maintained by the institution, it is likely considered an education record under FERPA.

The scope of what constitutes an education record is extensive. It includes a wide array of information that educational institutions typically collect and maintain about their students. Examples of education records under FERPA include:

• Personal Information: This encompasses basic identifying details such as the student’s name, address, phone number, email address, date and place of birth, and information about their parents or guardians.
• Enrollment Records: These records detail the student’s academic history with the institution, including their application for admission, admission information, and current enrollment status.
• Academic Performance: This category includes grades received in courses, academic transcripts detailing the student’s entire academic history, scores from various tests and assessments, academic evaluations conducted by instructors, and the student’s coursework, such as papers, exams, and theses.
• Scheduling Information: This includes the student’s class schedules and official class lists for courses they are enrolled in.
• Financial Aid Records: Information related to any financial assistance the student may be receiving, such as grants, loans, and scholarships.
• Disciplinary Records: Documents related to any disciplinary actions taken against a student for violations of school policies are protected under FERPA.
• Counseling and Advising Records: Notes and reports created by school counselors or academic advisors during sessions with students are also considered education records.
• Health Records: Medical information maintained by the educational agency or institution, such as records kept by a school nurse, generally falls under FERPA protection, although there are specific exceptions for records maintained by medical facilities which may be covered by the Health Insurance Portability and Accountability Act (HIPAA).
• Digital Communications and Data: In today’s digital age, student emails, data stored within Learning Management Systems (LMS) like assignment submissions and discussion posts, and even lecture recordings where students are identifiable, can be considered education records.
• Other Identifiable Information: This can include records related to internship programs, student loan collection, campus keys, and biometric records such as fingerprints or facial recognition data.

However, it is equally important to understand what types of records are specifically not considered education records under FERPA. These exceptions are:

• Sole Possession Notes: These are personal notes or reminders kept by an individual staff member or faculty member that are used only as a personal memory aid and are not shared with any other person, except a temporary substitute for the maker. Once these notes are shared, they may lose their “sole possession” status and become part of the education record.
• Law Enforcement Unit Records: Records created and maintained by a law enforcement unit of the educational agency or institution for law enforcement purposes are not considered education records under FERPA.
• Employment Records: Records relating to an individual who is employed by the educational agency or institution are generally not considered education records, provided that the employment is not contingent on the individual being a student. However, records of students employed as a result of their student status (e.g., work-study) may be considered education records.
• Medical Records: Records created and maintained by a physician, psychiatrist, psychologist, or other recognized professional acting in their professional capacity, used only in connection with the provision of treatment to the student, are typically not considered education records. These records may be subject to the protections of HIPAA.
• Alumni Records: Records that contain information about an individual after they are no longer a student at the educational agency or institution and that do not relate to the individual as a student are excluded from the definition of education records.
• Peer-Graded Papers: Grades on peer-graded papers before they are collected and recorded by a teacher are also not considered education records under FERPA.

The broad definition of an “education record” under FERPA, encompassing various formats and types of information, highlights the law’s commitment to protecting student privacy in an increasingly digital and data-driven educational environment. However, the specific exceptions acknowledge other legitimate institutional needs and legal frameworks.

Know Your Rights: FERPA for Students and Parents

FERPA establishes a clear set of rights for both parents of minor students and for students themselves once they reach the age of 18 or enroll in a postsecondary institution. This transfer of rights signifies a shift in legal responsibility and autonomy over educational records as students mature and become more independent in their academic pursuits.

Rights of Parents of Minor Students

Parents of students under the age of 18 have several key rights under FERPA. These include:

1. The right to inspect and review their child’s education records within a reasonable period of time, which is typically defined by institutional policy but must not exceed 45 days from the date of the request. This allows parents to understand the information the school is maintaining about their child’s academic progress and conduct.
2. The right to request that the school correct records that the parent believes to be inaccurate or misleading. This ensures that parents have a mechanism to address any errors or misrepresentations in their child’s educational history. If the school decides not to amend the record as requested, the parent has the right to a formal hearing on the matter. Furthermore, if the school still refuses to change the record after the hearing, the parent has the right to place a statement with the record explaining their view about the contested information.
3. The right to control the disclosure of personally identifiable information (PII) from their child’s education record. Generally, schools must obtain written consent from the parent before disclosing such information to a third party, with certain exceptions as outlined by FERPA.
4. The right to obtain a copy of the institution’s policy concerning access to and disclosure of educational records. This ensures transparency regarding the school’s procedures for complying with FERPA.
5. The right to file a complaint with the U.S. Department of Education if they believe the school has failed to comply with the requirements of FERPA. This provides a recourse for parents who believe their rights under FERPA have been violated.
6. The right to opt out of the disclosure of directory information. Schools often designate certain information as “directory information,” which can be disclosed without prior consent. However, parents have the right to instruct the school not to release even this type of information about their child.

Rights of Eligible Students

Once a student reaches the age of 18 or enrolls in any postsecondary institution, regardless of their age, all the rights afforded to parents under FERPA transfer directly to the student, who is then referred to as an “eligible student”. These rights largely mirror those previously held by the parents:

1. Eligible students have the right to inspect and review their education records within 45 days of submitting a written request to the educational institution.
2. They also have the right to request the amendment of any part of their education records that they believe to be inaccurate, misleading, or in violation of their privacy rights.
3. Eligible students have the authority to provide written consent for the disclosure of personally identifiable information from their education records to third parties, except for the instances where FERPA permits disclosure without consent.
4. Similar to parents, eligible students have the right to file a complaint with the U.S. Department of Education concerning alleged failures by the institution to comply with FERPA requirements.
5. They also retain the right to opt out of the disclosure of their directory information.

It’s worth noting that while eligible students have the right to inspect and review their education records, including academic transcripts, they do not necessarily have the right to obtain a physical copy of these records under FERPA unless circumstances effectively prevent them from exercising their right to inspect and review the original records, such as living a significant distance from the institution. This distinction is important for students planning for further education or employment who might assume they are automatically entitled to copies of their transcripts.

The Responsibilities of Schools: Ensuring FERPA Compliance

Compliance with the Family Educational Rights and Privacy Act is not merely a suggestion but a legal obligation for any educational institution that receives federal funding from the U.S. Department of Education. The potential consequence for failing to adhere to these regulations is significant: the institution risks losing its federal funding. To avoid such penalties and to uphold the privacy rights of their students, educational institutions must fulfill several key responsibilities.

One of the primary responsibilities of educational institutions is to annually notify parents and eligible students of their rights under FERPA. This notification must include information about the right to review and inspect records, the right to request amendments, and the right to consent to disclosures of personally identifiable information. Schools can disseminate this information through various channels, such as inclusion in student handbooks, letters sent home, or postings on the school’s official website.

Institutions are also obligated to establish and implement clear policies and procedures for how parents and eligible students can access and request amendments to their education records. This includes providing access to records within a reasonable timeframe, not to exceed 45 days from the date of the request. They must also have a process for considering requests for amendments and for providing a hearing if the institution decides not to make the requested changes.

A cornerstone of FERPA is the requirement that schools generally must obtain written consent from parents or eligible students before disclosing personally identifiable information (PII) from education records to any third party. This consent must be signed and dated by the parent or eligible student, specify the records to be disclosed, state the purpose of the disclosure, and identify the party or parties to whom the disclosure may be made. However, FERPA does outline several specific exceptions to this consent requirement, which will be discussed in detail later.

Educational institutions also have a responsibility to define what information they consider “directory information” and to provide an opportunity for students and parents to opt out of its disclosure. Directory information typically includes items such as a student’s name, address, telephone number, email address, photograph, date and place of birth, major field of study, dates of attendance, participation in officially recognized activities and sports, and degrees and awards received. Schools must inform students and parents about what they designate as directory information and how to opt out if they do not want this information to be released.

Furthermore, schools are required to maintain a record of each request for access to and disclosure of personally identifiable information from a student’s education records. This record must be kept with the student’s education records and should include the names of the parties who requested or received the information and their legitimate interests in doing so. There are some exceptions to this record-keeping requirement, such as disclosures made to the parent or eligible student themselves, to school officials with a legitimate educational interest, or pursuant to a valid consent.

In an increasingly digital world, the responsibility of educational institutions extends to implementing robust security measures to protect student records from unauthorized access, data breaches, and other cybersecurity threats. This includes employing measures such as data encryption, strong access controls, secure data storage systems, and regular security audits.

To ensure effective compliance, schools must also provide regular training to their staff and faculty on FERPA regulations and best practices for handling student data. This training should cover topics such as what constitutes an education record, who has rights under FERPA, when consent is required for disclosure, and how to properly respond to requests for access or amendments.

Finally, educational institutions must strive to balance the need to protect student privacy with the need to share information for legitimate educational and administrative purposes. This requires a careful understanding of FERPA’s provisions and a commitment to adhering to both the spirit and the letter of the law.

When Can Education Records Be Disclosed Without Consent?

While the general rule under FERPA is that educational institutions must obtain written consent from parents or eligible students before disclosing personally identifiable information from education records, the law recognizes that there are certain circumstances where such consent is not required. These exceptions are designed to allow for the sharing of necessary information in specific situations without unduly hindering the educational process or compromising safety. Some of the most common exceptions include:

1. Disclosure to School Officials with Legitimate Educational Interests: This exception allows school officials, including teachers, administrators, counselors, and even contractors or volunteers performing institutional services, to access student education records without consent if they have a legitimate educational interest in the information to fulfill their professional responsibilities. The definition of “legitimate educational interest” is typically determined by the institution itself.
2. Disclosure to Other Schools to Which a Student is Transferring: Schools may disclose education records to officials at other schools where a student is seeking to enroll or has already enrolled, provided the disclosure is for purposes related to the student’s enrollment or transfer.
3. Disclosure to Authorized Representatives for Audit or Evaluation Purposes: FERPA permits the disclosure of education records to authorized representatives of state and local educational authorities, the Secretary of Education, the Comptroller General of the United States, and the Attorney General of the United States for the purpose of auditing or evaluating federal- or state-supported education programs or for the enforcement of federal legal requirements related to these programs.
4. Disclosure in Connection with Financial Aid: Information from a student’s education record may be disclosed without consent if it is necessary for the student’s application for or receipt of financial aid, such as determining eligibility, the amount of aid, the conditions for the aid, or enforcing the terms and conditions of the aid.
5. Disclosure to Organizations Conducting Certain Studies: Schools can share education records with organizations conducting studies for or on behalf of the school to develop, validate, or administer predictive tests, administer student aid programs, or improve instruction. Such disclosures require a written agreement outlining the purpose of the study, the information to be disclosed, and assurances that the information will be kept confidential and destroyed when no longer needed.
6. Disclosure to Accrediting Organizations: Education records may be disclosed to accrediting organizations for the purpose of carrying out their accrediting functions.
7. Disclosure in Cases of Health and Safety Emergencies: In the event of a health or safety emergency, schools may disclose personally identifiable information from a student’s education record to appropriate parties, including law enforcement, public health officials, medical personnel, and parents, if the school determines that there is an articulable and significant threat to the health or safety of the student or other individuals and that the knowledge of the information is necessary to protect their health or safety. This exception is generally limited to the period of the emergency and only allows for the disclosure of information necessary to address the situation.
8. Disclosure Pursuant to Judicial Orders or Lawfully Issued Subpoenas: Schools are permitted to disclose education records if they receive a valid court order or a lawfully issued subpoena. However, the school must make a reasonable effort to notify the parent or eligible student of the order or subpoena before complying, unless the order or subpoena specifies otherwise.
9. Disclosure to Parents of a Dependent Student: Postsecondary institutions may disclose any education records, including financial records, to the parents of a student who is claimed as a dependent for tax purposes under the Internal Revenue Code.
10. Disclosure of Directory Information: Schools may disclose what is known as directory information, such as a student’s name, address, telephone number, email address, photograph, date and place of birth, major field of study, dates of attendance, participation in officially recognized activities and sports, and degrees and awards received, without prior consent, provided the institution has a policy designating this information as directory information and has given parents and eligible students the opportunity to opt out of such disclosure.
11. Disclosure to Victims of Violent Crimes or Non-Forcible Sex Offenses: Postsecondary institutions are permitted to disclose the final results of any disciplinary proceeding conducted by the institution against a student who is the alleged perpetrator of a crime of violence or a non-forcible sex offense to the alleged victim of that crime, regardless of whether the institution concluded that a violation was committed.
12. Disclosure Regarding Alcohol or Drug Violations by Students Under 21: Postsecondary institutions are allowed to inform parents if their child, who is under the age of 21, has violated a federal, state, or local law, or a school rule or policy, governing the use or possession of alcohol or illegal drugs.
13. Disclosure to Child Welfare Agencies: Educational agencies and institutions are permitted to disclose personally identifiable information from the education records of a student in foster care to an agency caseworker or other representative of a State or local child welfare agency or tribal organization authorized to access the student’s case plan, when the agency or organization is legally responsible for the student’s care and protection.
14. Disclosure to Military Recruiters: The No Child Left Behind Act requires local education agencies to provide military recruiters with the name, address, and telephone listing of secondary students, although school districts must give parents the option to request that this information not be released.
15. Disclosure for Research Purposes: Under specific conditions, exceptions exist for the requirement to obtain parental or adult-student consent to release student records for research, often requiring approval from an Institutional Review Board (IRB) and a written agreement between the researcher and the educational institution outlining the purpose, scope, and duration of the study, as well as assurances regarding data security and destruction.

These numerous exceptions underscore the fact that while FERPA places a strong emphasis on the privacy of student education records, it also recognizes the need for institutions to share information in specific circumstances to support the educational process, ensure safety, comply with legal obligations, and serve the broader public interest. However, it is crucial for educational institutions to carefully consider the specific conditions and limitations associated with each exception before disclosing any personally identifiable information without consent.

FERPA in Action: Real-World Examples of Privacy Protection

The principles of FERPA translate into tangible protections for student privacy in various educational scenarios. For instance, FERPA prevents schools from sharing a college student’s grades with their parents without the student’s explicit written consent, even if the parents are paying the tuition, unless the student is claimed as a dependent for tax purposes. Similarly, it limits who within a school has access to a student’s disciplinary records or counseling notes, ensuring that only those with a legitimate educational interest in the information can view it.

Furthermore, FERPA mandates that educational institutions take reasonable steps to secure student records, whether they are stored in physical filing cabinets or on digital servers. This includes implementing measures to prevent unauthorized access, such as using secure passwords, encrypting sensitive data, and limiting physical access to record storage areas. The law also empowers students and parents with the right to review their education records and to challenge any information they believe to be inaccurate or misleading, providing a crucial mechanism for ensuring the integrity of these records. Sensitive personally identifiable information, such as a student’s social security number, is also protected from public disclosure under FERPA. Finally, students and parents have the right to control whether even basic directory information about the student is shared with the public by opting out of its disclosure.

To further illustrate how FERPA safeguards student privacy, it’s helpful to consider some common examples of actions that would constitute a violation of the law. Posting a list of student grades publicly, using names or student identification numbers, would be a clear breach of FERPA as it discloses academic performance information without consent. Similarly, including specific details about a student’s grades or disciplinary history in a letter of recommendation without obtaining explicit written consent from the student is a violation. Sending a group email to multiple students where all of the recipients’ email addresses are visible to each other could also violate FERPA if those email addresses are considered personally identifiable information and were not intended for public disclosure. Discussing a student’s academic performance or disciplinary issues in a public place, where others might overhear, would also be a failure to protect the student’s privacy. Mishandling student records on digital platforms, such as storing them on unsecured servers or transmitting them without encryption, puts the data at risk and can lead to FERPA violations. Even releasing directory information about a student after they have explicitly opted out of such disclosure would be a violation of their FERPA rights. These examples highlight the practical ways in which FERPA protects the confidentiality of student education records and the potential pitfalls that educational institutions must be careful to avoid.

The Stakes are High: Consequences of FERPA Violations

Violations of the Family Educational Rights and Privacy Act can have significant consequences for educational institutions. The most severe penalty for non-compliance is the potential loss of federal funding from the U.S. Department of Education. For many schools, colleges, and universities, federal funding is a critical component of their operational budget, making this a substantial risk.

In addition to the potential loss of funding, institutions that are found to be in violation of FERPA may face investigations by the Department of Education’s Family Policy Compliance Office (FPCO). These investigations can be time-consuming and may require the institution to expend significant resources to address the allegations and implement corrective actions. The FPCO also has the authority to issue cease and desist orders, directing the institution to stop the unauthorized disclosure of student information. While FERPA itself does not impose monetary fines on institutions, other related laws or institutional policies might carry financial penalties for privacy violations. Furthermore, repeated or egregious violations could lead to the suspension or termination of payments from the Department of Education or even the denial of eligibility for future federal funding. In extreme cases, an institution’s accreditation could also be jeopardized due to a failure to comply with federal regulations like FERPA.

Beyond the direct sanctions imposed by the Department of Education, FERPA violations can also lead to significant reputational damage and a loss of public trust. A breach of student records can erode the confidence of students, parents, alumni, and the wider community in the institution’s ability to safeguard sensitive personal information. This can have long-term consequences, potentially leading to decreased enrollment and a decline in alumni donations. Moreover, individuals whose privacy rights have been violated may choose to pursue legal action against the institution, resulting in costly lawsuits and further damage to its reputation. To remedy violations and prevent future occurrences, institutions may be required to implement comprehensive corrective measures, including revising their privacy policies, providing additional staff training on FERPA regulations, and enhancing their data security protocols. In cases where a FERPA violation also constitutes a breach of state-specific privacy laws, the institution may face additional penalties at the state level. In instances of particularly serious misconduct, senior management within the institution could even face temporary suspension or be replaced. While the ultimate penalty for FERPA violations is the loss of federal funding, the Department of Education often prioritizes working with institutions to help them achieve and maintain compliance, particularly for unintentional or minor infractions. However, repeated or intentional violations are likely to be met with more stringent enforcement actions.

It is also important to recognize that individual employees within an educational institution can face consequences for violating FERPA. These can include disciplinary actions such as reprimands, suspension, or even termination of employment. Employees who improperly disclose student information may also be subject to internal investigations and could be barred from accessing school systems and records in the future. While FERPA itself does not provide for private lawsuits against individual employees, they could potentially face prosecution under other laws, such as those related to fraud or identity theft, and might be required to pay fines for their violations. Third-party vendors who have contracts with educational institutions and who fail to adequately protect student data can also face repercussions, including the termination of their contracts.

Navigating FERPA: Common Questions Answered

Understanding the intricacies of FERPA can sometimes be challenging. Here are answers to some frequently asked questions that can help clarify common points of confusion:

1. When do FERPA rights begin? For students attending a postsecondary institution, FERPA rights begin as soon as they enroll, regardless of their age.
2. Do parents of college students have rights under FERPA? Generally, no. Once a student turns 18 or attends a postsecondary institution, FERPA rights transfer to the student. However, there are exceptions, such as if the student is claimed as a dependent for tax purposes or in specific health or safety emergency situations. Students can also grant their parents access to their educational records by providing written consent.
3. What is “legitimate educational interest”? A school official, including faculty and staff, has a legitimate educational interest if they need to review a student’s education record in order to fulfill their professional responsibilities. Simply being curious about a student’s record does not constitute a legitimate educational interest.
4. What is directory information? Directory information is personally identifiable information from a student’s education records that an institution may release to the public without the student’s written consent, unless the student has restricted disclosure. Examples include the student’s name, address, phone number, email address, photograph, date and place of birth, major field of study, enrollment status, dates of attendance, participation in officially recognized activities and sports, and degrees and awards received. Educational institutions must inform students of what they consider directory information and allow them to opt out of its release.
5. Can schools share student information with military recruiters? Yes, under the No Child Left Behind Act, secondary schools that receive federal funding are generally required to provide military recruiters with students’ names, addresses, and telephone numbers upon request. However, schools must also notify parents of this policy and provide them with the opportunity to opt their child out of having this information released.
6. Are student-related comments and notes covered by FERPA? Yes, any notes or comments about a student that are maintained by the institution are generally considered part of the student’s education record and are subject to FERPA, unless they fall under the specific category of “sole possession” notes that are kept private and not shared with others.
7. How can one file a FERPA complaint? A parent or eligible student may file a written complaint with the Family Policy Compliance Office (FPCO) of the U.S. Department of Education regarding an alleged violation of FERPA. The complaint must be submitted within 180 days of the date the complainant knew or reasonably should have known of the violation and should clearly state the specific allegations of fact giving reasonable cause to believe that the school has violated FERPA.
8. What records are exempt from FERPA? Several types of records are specifically exempted from the definition of education records under FERPA, including sole possession notes, law enforcement unit records, employment records (unless based on student status), medical records created and maintained for treatment purposes, alumni records, and grades on peer-graded papers before they are collected and recorded by the instructor.

These frequently asked questions address some of the most common areas of inquiry and potential misunderstanding regarding FERPA, providing valuable clarification for individuals seeking to navigate this important law.

Further Reading: Authoritative Resources on FERPA

For those seeking more in-depth information about the Family Educational Rights and Privacy Act, several authoritative resources are available:

• U.S. Department of Education Student Privacy Policy Office – This is the official website of the U.S. Department of Education dedicated to student privacy, offering comprehensive information, guidance, and resources related to FERPA.
• U.S. Department of Education’s FERPA Regulations (34 CFR Part 99) – This link provides direct access to the full text of the federal regulations implementing FERPA.
• Family Policy Compliance Office (FPCO) – The FPCO is the office within the U.S. Department of Education responsible for administering and enforcing FERPA. Their website offers additional information and resources.
• A Parent Guide to the Family Educational Rights and Privacy Act (FERPA) – This guide provides specific information and explanations tailored to parents of students in elementary and secondary schools.
• An Eligible Student Guide to the Family Educational Rights and Privacy Act (FERPA) – This guide offers information specifically for students who have reached the age of 18 or are attending a postsecondary institution.
• Electronic Privacy Information Center (EPIC) – FERPA page – EPIC provides analysis and resources on various privacy issues, including FERPA.
• Student Press Law Center (SPLC) – FERPA page – The SPLC offers resources and information on how FERPA intersects with the rights of student journalists and the public’s access to information.

These resources offer a wealth of information for individuals seeking a deeper understanding of the Family Educational Rights and Privacy Act and its implications for student privacy in education.

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