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Family Educational Rights and Privacy Act

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FERPA
Great Seal of the United States
Long titleFamily Educational Rights and Privacy Act
Citations
Statutes at Large20 U.S.C. § 1232g
Legislative history
  • Introduced in the Senate by James L. Buckley (C-R–NY)
  • Passed the House on January 3, 1973 
  • Passed the Senate on February 21, 1974 
  • Signed into law by President Gerald Ford on August 21, 1974
Major amendments
USA Patriot Act
United States Supreme Court cases

The Family Educational Rights and Privacy Act of 1974 (FERPA or the Buckley Amendment) is a United States federal law that governs the access to educational information and records by public entities such as potential employers, publicly funded educational institutions, and foreign governments.[1] The act is also referred to as the Buckley Amendment, for one of its proponents, Senator James L. Buckley of New York.[2]

FERPA is a U.S. federal law that regulates access and disclosure of student education records. It grants parents access to their child's records, allows amendments, and controls disclosure. After a student turns 18, their consent is generally required for disclosure. The law applies to institutions receiving U.S. Department of Education funds and provides privacy rights to students 18 years or older, or those in post-secondary institutions. Disclosure is permitted to parents of dependent students, and medical records are usually protected under FERPA rather than HIPAA. The law has faced criticism for concealing non-educational public records.

Overview

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FERPA gives parents access to their child's education records, an opportunity to seek to have the records amended, and some control over the disclosure of information from the records. With several exceptions, schools must have a student's consent prior to the disclosure of education records after that student is 18 years old. The law applies only to educational agencies and institutions that receive funds under a program administered by the U.S. Department of Education.[3]

Other regulations under this Act, effective starting January 3, 2012, allow for greater disclosures of personal and directory student identifying information and regulate disclosure of student IDs and e-mail addresses.[4] For example, schools may provide external companies with a student's personally identifiable information without the student's consent.[4] Conversely, tying student directory information[5] to other information may result in a violation, as the combination creates an education record.[6][7]

Examples of situations affected by FERPA include school employees divulging information to anyone other than the student about the student's grades or behavior, and school work posted on a bulletin board with a grade. Generally, schools must have written permission from the parent or eligible student in order to release any information from a student's education record.

This privacy policy also governs how state agencies transmit testing data to federal agencies, such as the Education Data Exchange Network.

This U.S. federal law also gave students 18 years of age or older, or students of any age if enrolled in any post-secondary educational institution, the right of privacy regarding grades, enrollment, and even billing information unless the school has specific permission from the student to share that specific type of information.

FERPA also permits a school to disclose personally identifiable information from education records of an "eligible student" (a student age 18 or older or enrolled in a postsecondary institution at any age) to his or her parents if the student is a dependent "student" as that term is defined in Section 152 of the Internal Revenue Code. Generally, if either parent has claimed the student as a dependent on the parent's most recent U.S. Federal income tax return, the school may non-consensually disclose the student's education records to both parents.[8]

The law allowed students who apply to an educational institution such as graduate school permission to view recommendations submitted by others as part of the application. On standard application forms, students are given the option to waive this right.

FERPA specifically excludes employees of an educational institution if they are not students.

FERPA is now a guide to communicating higher education issues and privacy issues that include sexual assault and campus safety.[9] It provides a framework on addressing needs of certain populations in higher education.[9]

Access to public records

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The citing of FERPA to conceal public records that are not "educational" in nature has been widely criticized, including criticism by the Act's primary Senate sponsor.[10] For example, in the Owasso Independent School District v. Falvo case, an important part of the debate was determining the relationship between peer-grading and "education records" as defined in FERPA. The plaintiffs argued "that allowing students to score each other's tests [...] as the teachers explain the correct answers to the entire class [...] embarrassed [...] children", but they lost in a summary judgment by the district court. The Court of Appeals, ruled that students placing grades on the work of other students made such work into an "education record." Thus, peer-grading was determined as a violation of FERPA privacy policies because students had access to other students' academic performance without full consent.[11] However, on appeal to the Supreme Court, it was unanimously ruled that peer-grading was not a violation of FERPA. This is because a grade written on a student's work does not become an "education record" until the teacher writes the final grade into a grade book.[12]

Student medical records

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Legal experts have debated the issue of whether student medical records (e.g. records of therapy sessions with a therapist at an on-campus counseling center) might be released to the school administration under certain triggering events, such as when a student sues his or her college or university.[13][14]

Usually, student medical treatment records will remain under the protection of FERPA, not the Health Insurance Portability and Accountability Act (HIPAA). This is due to the "FERPA Exception" written within HIPAA.[15]

See also

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References

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  1. ^ Codified at 20 U.S.C. § 1232g, with implementing regulations in title 34, part 99 of the Code of Federal Regulations
  2. ^ "Legislative History of Major FERPA Provisions". U.S. Department of Education.
  3. ^ "FERPA for Students". www2.ed.gov. 2015-06-26. Retrieved 2020-11-14.
  4. ^ a b Mendelsohn, Stephen A. (2 January 2012). "U.S. Department of Education Amends its FERPA Regulations to Allow for Certain Additional Student Disclosures". The National Law Review. Retrieved 9 March 2014.
  5. ^ "What is "Directory Information"?". US Department of Education. 26 June 2015. Archived from the original on 2 July 2019. Retrieved 26 February 2020. – [...] Typically, "directory information" includes information such as name, address, telephone listing, date and place of birth, participation in officially recognized activities and sports, and dates of attendance. A school may disclose "directory information" to third parties without consent if [...]. (34 CFR 99.37.)
  6. ^ "FERPA Tutorial - Directory Information|When is Directory Information Not Really Directory Information?". Office of The University Registrar - Pennsylvania State University. Retrieved 26 February 2020. It is important to also understand the concept of "implicit disclosure." An implicit disclosure may occur when a list consists only of directory information but the list itself by definition reveals non-directory information. For example, a list of names and email addresses of all students who have a particular grade-point average reveals the students' GPAs. Likewise, a class list containing names and email addresses of the students reveals class enrollments. Since neither grade-point average nor class enrollment are directory items, releasing these lists without prior consent of the students constitutes a FERPA violation.
  7. ^ "What is an education record? | Protecting Student Privacy". studentprivacy.ed.gov. US Department of Education. Archived from the original on 25 December 2018. Retrieved 26 February 2020 – via studentprivacy.ed.gov/frequently-asked-questions. [...]records include but are not limited to grades, transcripts, class lists, student course schedules, health records (at the K-12 level), student financial information (at the post secondary level), and student discipline files. [...]
  8. ^ FERPA General Guidance for Parents, U.S. Department of Education, http://www2.ed.gov/policy/gen/guid/fpco/ferpa/parents.html
  9. ^ a b Fuller, Matthew (June 2017). "An Update on the Family Educational Rights and Privacy Act". New Directions for Institutional Research. 2016 (172): 25–36. doi:10.1002/ir.20201. ISSN 0271-0579.
  10. ^ Jill Riepenhoff & Todd Jones, "Secrecy 101," The Columbus Dispatch, Dec. 17, 2010, http://www.dispatch.com/content/stories/local/2010/10/14/secrecy-redirect.html
  11. ^ Dinger, Daniel. "Johnny saw my test score, so I'm suing my teacher: Falvo v. Owasso Independent School District, peer grading, and a student's right to privacy under the Family Education Rights and Privacy Act". Journal of Law & Education. 30: 575–626.
  12. ^ "Owasso Independent School District No. I-011 v. Falvo". – [...]assuming a teacher's grade book is an education record, grades on students' papers are not covered by the Act at least until the teacher has recorded them. 534 U.S. 426 (2002)
  13. ^ Mangan, Katherine (March 5, 2015). "Just How Private Are College Students' Campus Counseling Records?". The Chronicle of Higher Education. Retrieved 17 March 2015.
  14. ^ Pryal, Katie Rose Guest (March 2, 2015). "Raped on Campus? Don't Trust Your College to Do the Right Thing". The Chronicle of Higher Education.
  15. ^ Rowe, Linda (2005). "What Judicial Officers Need to Know about the HIPAA Privacy Rule". NASPA Journal. 42 (4): 498–512. doi:10.2202/0027-6014.1537. ProQuest 62084860.
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