The United States Department of Education released a 54-page document on Dec. 9, 2008 that detailed several modifications to the enforcement of the Family Educational Rights and Privacy Act (FERPA). The new rules, which went into effect on January 8, essentially expand the definition of what constitutes a confidential “education record” under federal privacy standards.
FERPA is also known as the Buckley Amendment, 20 U.S.C. 1232 et seq. It was passed in 1974 to condition the receipt of federal funds on whether educational institutions met its privacy requirements regarding the “education records” of students. Additional regulations for FERPA are listed in 34 C.F.R. 99.1 et seq.
Generally, FERPA requires that a school obtain written permission from a student or parent before releasing any information from a student’s “education record,” unless the requesting party is a qualified school official, law enforcement agency, or other party specifically listed in 34 C.F.R. 99.1.
The introduction to the rule changes stated that the amendments were “needed to implement a provision of the USA Patriot Act and the Campus Sex Crimes Prevention Act, which added new exceptions permitting the disclosure of personally identifiable information from education records without consent. The amendments also implement two U.S. Supreme Court decisions interpreting FERPA, and make necessary changes identified as a result of the Department’s experience administering FERPA and the current regulations.” The entire rule, including summaries and examples, is available at http://www.ed.gov/legislation/FedRegister/finrule/2008-4/120908a.pdf.
Of particular interest to media groups were the Department’s modifications pertaining to 34 C.F.R. 99.3 and 99.31(b). The regulations prohibit the release of “personally identifiable information” in most circumstances. Under the new regulations, “personally identifiable information” includes not only such information as a student’s name, address, and social security number, but any “other information that, alone or in combination, is linked or linkable to a specific student that would allow a reasonable person in the school community, who does not have personal knowledge of the relevant circumstances, to identify the student with reasonable certainty,” and “information requested by a person who the educational agency or institution reasonably believes knows the identity of the student to whom the education record relates.”
The Department of Education said in the Federal Register notice accompanying the final regulations that the decision was based solely on concern for student privacy.
“FERPA is not an open records statute or part of an open records system. The only parties who have a right to obtain access to education records under FERPA are parents and eligible students,” the Register notice stated. “Journalists, researchers, and other members of the public have no right under FERPA to gain access to education records for school accountability or other matters of public interest, including misconduct by those running for public office.”
The Register notice also explained the use of the “reasonable person” standard in determining whether information could be released. “The ‘reasonableness’ standards … do not require the exercise of subjective judgment or inquiries into a requester’s motives. Both provisions require the disclosing party to use legally recognized, objective standards by referring to identification not in the mind of the disclosing party or requester but by a reasonable person and with reasonable certainty, and by requiring the disclosing party to withhold information when it reasonably believes certain facts to be present.”
The Federal Register notice also emphasized that new regulations provided for nondisclosure based on whether information is personally identifiable “with regard to what a reasonable person in the school or its community would know.”
“For example, it might be well known among students, teachers, administrators, parents, coaches, volunteers, or others at the local high school that a student was caught bringing a gun to class last month but generally unknown in the town where the school is located … a school district may not disclose that a high school student was suspended for bringing a gun to class last month, even though a reasonable person in the community where the school is located would not be able to identify the student, because a reasonable person in the high school would be able to identify the student,” the notice said.
Critics of the new regulations said they will make it much more difficult for journalists and parents to investigate the performance of schools and colleges.
“The [Department of Education] made no attempt to strike a balance between legitimate privacy interests and the public’s right to hold schools accountable. [It] simply said that accountability doesn’t matter and that its only concern is secrecy,” said Frank LoMonte, the executive director of the Student Press Law Center (SPLC) in a December 15 press release. “[The Department of Education]’s interpretation flies in the face of every court ruling to interpret FERPA, and it goes well beyond what Congress intended in enacting the law.”
LoMonte was especially critical of the Department’s specific example that it would seal the information of a student suspended for bringing a gun to school. “The public has a right to know essential safety information such as what steps administrators take when they catch a student carrying a gun into a high school.” LoMonte said. “There is no legitimate ‘privacy’ interest in committing a felony on school grounds, and the Department’s insistence on protecting the ‘privacy’ of a would-be school shooter over the safety interests of the public shows just how arbitrary and irrational these rules are.”
The Society of Professional Journalists reacted to the regulations by sending a letter to various members of Congress who served as ranking members of education-related committees. The letter, dated January 6, said the new regulations would hinder school accountability and diminish public safety.
“As we move toward a more market-based, competitive model for improving school performance, families should be entitled to more, not less, information before choosing the school in which their children enroll,” the letter said. “We hope you will consider calling for hearings on this issue in order to prevent FERPA from being expanded, via the new regulations, to require the secrecy of records that in no way infringe on the privacy of individual students.”
– Jacob Parsley
Silha Research Assistant