Legal Issues and the Family Educational Rights and Privacy Act

1. Background: FERPA, 20 USC 1232g, also known as the Buckley Amendment, was enacted on August 21, 1974, and took effect on November 19, 1974.  It was enacted in response to a growing public awareness regarding government record keeping and the dissemination of information commonly considered private in nature.  It provides rights of inspection and prohibitions against unauthorized dissemination of educational information and applies to elementary, secondary, and post secondary educational agencies.  The Department of Health, Education, and Welfare (now Health and Human Services) was charged with implementing the act and maintains oversight of complaints under the act today.
    

2. Applicability
    

   1. The act applies to all public and private institutions of higher education which receive funds made available under programs administered by the Secretary of Education, including federal grant monies, Pell grants, Guaranteed Student Loan Programs, and other such funds.  If an institution receives monies under one or more such programs, the regulations apply to the recipient as a whole, including each component or department within the institution.  In other words, most institutions of higher education, whether public or private, fall under FERPA regulations.
       
   2. For Texas state-supported institutions, the legislature has incorporated the provisions of FERPA into the Texas Open Records Act, Article 6252-17a, Vernon's Annotated Civil Statutes.  Consequently, requests for student records may be referred to the Attorney General for ruling if the records should not be disclosed.
       
3. Definitions: Selected definitions include:
    
   1. Student--any individual who is or has been in attendance at an institution and about whom the institution maintains education records.  Eligible students are those who are 18 years of age or older.
       
   2. Parent--parent of a student, including natural parent, guardian, or an individual acting as a parent in the absence of a parent or guardian.
       
   3. Attendance--attendance in person or by correspondence.  This definition also includes that period of time during which a student might be working under a work-study program.  Note that it is not enough to be enrolled; the student must be physically present at the institution except in cases involving a correspondence course.
       
   4. Disclosure--to permit access to education records or the personally identifiable information in the records by any means, including oral, written, or electronic means.
       
   5. Personally identifiable information--student's name, parent and family member names, address of student and parent or family members, a personal identifier such as social security number or student number, a list of personal characteristics or other information which would make the student's identity easily traceable.
       
   6. Directory information - information contained in education records which would not generally be considered harmful or an invasion of privacy if released.  Specific examples include student name, address, telephone number, date and place of birth, major field of study, participation in recognized activities and sports, weight and height of athletes, dates of attendance, degrees and awards received, and the most recent previous educational institution attended.  For public institutions in Texas, the Attorney General has broadened this list somewhat to include marital status, religious preference, student parking permit information, current class schedule, current number of hours enrolled, and class roster.
       
   7. Education records--those records that are directly related to a student and are maintained by an educational institution.  Education records do not include:
       
      1. records of instructional, supervisory, and administrative personnel that are kept in the sole possession of the maker of the record and are not revealed to anyone except a substitute.  Example:  grade books and lesson plans.
      2. records of a law enforcement unit of an educational institution if the records are maintained separately from education records, maintained solely for enforcement purposes, and disclosed only to law enforcement officials of the same jurisdiction.
      3. records relating to an individual who is employed by an educational institution that are maintained in the normal course of business, related solely to the individual as an employee, and are not available for any other purpose.  Exception:  records of an individual who is employed by the educational institution as a result of his or her status as a student are educational records and are not excepted from coverage under this section.  Examples include employment records of research and teaching assistants.
      4. records that contained information about an individual after he or she is no longer a student at the institution.
      5. records of a student that are made or maintained by a physician, psychologist, psychiatrist, or other recognized professional or paraprofessional acting in such capacity which are made or used only in connection with treatment of the student and are disclosed only to persons providing the treatment.  Treatment does not include remedial educational activities or activities that are part of the program of instruction.
          
4. Rights of Inspection and Review
    
   1. FERPA provides that an institution must allow an eligible student to inspect and review his or her educational records.  The educational agency must provide the records no later than 45 days after requested.  The institution must respond to reasonable requests for explanations and interpretations of the records.  And records may not be destroyed if there is an outstanding request for inspection.  Records not subject to review include:
       
      1. financial records of the parents; and
      2. confidential letters and statements of recommendation if the student has waived the right to review and inspect these documents and the letters are related to the student's admission, application for employment, or receipt of an honor or honorary recognition.  The waiver is valid only if it is not a condition of admission to the institution or of receipt of a benefit or service from the institution and if it is in writing and signed by the student.  If the student provides such a waiver, the student shall receive, upon request, the names of the persons providing the recommendations, and the institution shall not use the letters for any purpose other than that for which they were originally intended.  The student may revoke the waiver in writing; however, revocation affects actions only after it is received.  In other words, a student may not revoke the waiver in order to see documents already received.
          
   2. If a student believes that the records contain inaccurate or misleading information or information that violates the student's right to privacy, the student may request that the institution amend the records.  If the institution does not agree, it shall inform the student in writing and advise the student of the right to a hearing.  If, as a result of the hearing, the institution agrees with the student, it shall amend the record and notify the student in writing.  If the institution does not agree, it shall advise the student that he or she may place a written statement in the file contesting the information.  If the student chooses this option, the statement must be maintained with the contested information and disclosed in conjunction with any release of the contested information.  Minimum hearing requirements include:
       
      1. the hearing must be held within a reasonable time after the request;
      2. the student will be provided reasonable notice of the date, place, and time;
      3. the individual conducting the hearing must not have a direct interest in the outcome;
      4. the student must have a fair opportunity to present his/her case and may be assisted by an attorney;
      5. the decision must be in writing and rendered within a reasonable time after the hearing.  It must be based solely on the evidence presented at the hearing and must include a summary of the evidence and the reasons for the decision.
          
   3. The courts have ruled that FERPA does not provide a means by which a student may obtain information on how a particular grade was assigned.  "At most, a student is only entitled to know whether or not the assigned grade was recorded accurately in the student's record."  Tarka v. Cunningham, 741 F. Supp. 1281 (W. D. Tex. 1990).
       
5. Disclosure
    
   1. In general, an eligible student's consent must be obtained prior to disclosing personally identifiable information from the student's educational records.  The consent form must be in writing, stating the date, the records to be released, and the purpose of the disclosure.  Exceptions to this rule include:
       
      1. directory information unless the student has requested in writing that all or any portion of those items designated as directory information not be disclosed;
      2. disclosures to internal officials who have a legitimate educational interest in the information;
      3. disclosures to another educational institution where the student seeks or intends to enroll;
      4. disclosure is to be made to authorized representatives of the Comptroller General of the U.S., the Secretary of Education, or state and local educational authorities;
      5. financial aid which the student has applied for or received if the disclosure is for the purpose of determining eligibility, amount or conditions of aid, or to enforce the terms and conditions of the aid;
      6. disclosures to organizations conducting studies for or on behalf of educational agencies to develop, validate, or administer predictive tests or student aid programs or to improve instruction; 
      7. disclosures to accrediting agencies to carry out accrediting functions; parents of a dependent student, as defined by the Internal Revenue Code; 
      8. disclosure is to comply with a lawfully issued subpoena or court order if the institution makes a reasonable effort to inform the student in advance of compliance; 
      9. emergencies if knowledge of the information is necessary to protect the health or safety of the student 
      10. or other individual disclosures of the results of disciplinary proceedings conducted by the institution against the alleged perpetrator of any crime to the alleged victims of any crime of violence.
           
   2. An educational institution has a duty to record and maintain each request and release of personally identifiable information from a student's educational records except when the request is received from an institution official, a parent or eligible student, or a person with written consent or when the request is for directory information.
       
   3. A student's privacy rights under FERPA and the Open Records Act terminate upon death.  See, Open Records Decision 524, May 18, 1989.
       
6. Policy Requirements
    
   1. FERPA requires each institution to develop a policy spelling out the manner in which the institution advises parents and students of their rights under the act; the procedure to inspect and review records, including legitimate reasons to deny a request, and a schedule of fees for copying; a list of the types and locations of educational records, including the title of the individual responsible for those records; a statement that personally identifiable information will not be released without written consent except under the exceptions listed above; if the institution releases information to internal officials, specify the criteria for defining a legitimate educational interest; a list of the items which constitute directory information; a statement regarding the right to a hearing and an opportunity to correct or protest the record.  The policy shall be in writing and available upon request.
       
7. Enforcement
    
   1. The Family Policy and Regulations Office of the Department of Education is authorized to investigate and review potential violations and to provide technical assistance regarding compliance issues.
       
   2. In the event that the office determines that a complaint is meritorious, the office shall recommend steps necessary to insure compliance with the act and provide a reasonable time for an institution to come into compliance.
       
   3. If an institution does not come into compliance, the department is authorized to terminate all or any portion of the institution's federal funds.
       
   4. There is no private right of action under FERPA; in other words, an aggrieved student may not bring suit in state or federal court for an alleged violation under the act.  Tarka v. Franklin, 891 F.2d 102 (5th Cir. 1987) (Footer, 1992).