Navigating Educational Privacy: A Comprehensive Overview of the Family Educational Rights and Privacy Act (FERPA)

The Family Educational Rights and Privacy Act (FERPA), also known as the Buckley Amendment, is a U.S. federal law enacted in November 1974. It governs access to educational information and records by public entities, potential employers, publicly funded educational institutions, and foreign governments. The primary goal of FERPA is to protect the privacy of personally identifiable information within a student's education record.

Core Principles of FERPA

FERPA operates on two fundamental principles:

Access to Education Records: Parents (of students under 18) and students who are 18 years or older ("eligible students") have the right to inspect and review the student’s education records maintained by the educational institution.
Protection from Disclosure: Educational institutions must obtain written consent from parents or eligible students before disclosing personally identifiable information from a student's education record to third parties.

Applicability of FERPA

FERPA applies to any educational institution that receives federal funding from the U.S. Department of Education. This encompasses all public schools and the vast majority of private institutions. Non-compliance can result in the withholding of federal funds from schools that have a policy or practice of improperly disclosing students' education records or failing to disclose information as required.

However, it is important to note that FERPA only prevents the disclosure of education records. Many documents that schools and colleges mistakenly believe to be FERPA records do not usually qualify as "education records" under this definition.

Understanding "Education Records"

FERPA defines "education records" as those records, files, documents, and other materials that:

Contain information directly related to a student.
Are maintained by an educational institution or by a party acting for the institution.

Examples of education 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.

For a record to directly relate to a student, the student must be the focus of the record, not simply in the background or incidental to a report. The Supreme Court has described education records as “institutional records kept by a single central custodian, such as a registrar . . .” In other words, for FERPA to apply, the record in question must be systematically maintained by the school. For example, psychological evaluations and notes on disciplinary actions are considered education records subject to FERPA.

Exceptions to the Definition of Education Records

The term "education records" does not include certain records, such as:

Records that are kept in the sole possession of the maker and are not accessible or revealed to any other individual (except those who temporarily perform the duties of the record maker).
Records created and maintained by a law enforcement unit of the educational institution solely for law enforcement purposes.
Employment records, when the college employment did not result from and does not depend upon the fact that an individual is a student at the College, provided that the employment records: relate exclusively to the individual in that individual’s capacity as a College employee; are made and maintained in the normal course of business; are not available for use for any other purpose. All records relating to a student who also is an employee of the College are included in the definition of education records, if the student’s employment is contingent upon the fact that they are a student. For example, work-study program records are education records.
Health records, which:are created or maintained by a physician, psychiatrist, psychologist or other recognized professional or paraprofessional acting in his or her professional or paraprofessional capacity, or assisting in that capacity;are created, maintained or used only in connection with the provision of treatment to the student; and are not disclosed to anyone except to other than individuals providing the treatment, except that the records may be personally reviewed by a physician or other appropriate professional of the student’s choice. For the purpose of this definition, "treatment" does not include academic and career advising, tutoring, disability management counseling, or any activities which are part of the program of instruction offered by the College. The Health Insurance Portability and Accountability Act of 1996 (HIPAA) Privacy Rule excludes student medical treatment records and other records protected by FERPA.
Applicant records of individuals who do not enroll in or register with an academic program of the College. If and when applicants become students, their applicant records become education records, which are then accorded the same privacy rights as any other education records governed by this Policy.
Records (i.e., alumni records) about a person containing only information obtained from that person after that person is no longer a student, or relating to that person and obtained from others after that person is no longer a student.

Directory Information

FERPA recognizes a category of basic demographic information called "directory information" that schools can generally release without violating FERPA. This includes data such as a student's name, address, phone number, email address, photograph, date and place of birth, major field of study, dates of attendance, grade level, enrollment status (e.g., full-time or part-time), participation in officially recognized activities and sports, weight and height of members of athletic teams, honors and awards received, and the most recent educational agency or institution attended.

Schools must inform parents and eligible students about what information they classify as directory information and provide them with an opportunity to opt-out of its disclosure. If a student or parent opts out, even directory information cannot be released without their written consent.

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However, even basic directory information can be subject to FERPA if “when one or more pieces of information are combined it would allow a reasonable person to identify a child.” In a 2017 case, the Louisiana Court of Appeals ruled that even general information such as the total number of students enrolled in each grade, ethnic group designations, disability statistics, and how many students qualify for free or reduced lunch could be protected from disclosure under FERPA because that information could be “linkable to a specific student . . .

Exceptions to FERPA's Consent Requirements

While FERPA generally requires written consent for the disclosure of personally identifiable information, there are several exceptions:

School Officials with Legitimate Educational Interests: Education records may be disclosed to school officials within the school, such as teachers, who have a legitimate educational interest in the information. It is the school’s responsibility to determine when there is a legitimate educational interest. For example, a teacher concerned about a student’s performance may have a legitimate educational interest in looking at the student’s standardized test scores, but a teacher who just wanted to find out the IQ scores of his or her students probably would not. A "college official" is a person employed by the College in an administrative, supervisory, academic or research, or support staff position (including Public Safety and Health Services); a person or company with whom the College has contracted as its agent to provide a service instead of using College employees or officials (such as an attorney, auditor, or collection agent); a person serving on the Board of Trustees; or another student serving on an official committee, such as a disciplinary or grievance committee, or assisting another college official in performing his or her tasks. A college official has a legitimate educational interest if the official needs to review an education record in order to fulfill his or her professional responsibilities for the College.
Transfer to Other Schools: Education records may be disclosed to another school, school district, or post-secondary institution where the student is planning to enroll.
Audits and Evaluations: Education records may be disclosed to representatives of the Comptroller General of the United States, the Attorney General of the United States, the Secretary of the United States Department of Education, or other state or local authorities for purposes of audit or evaluation.
Financial Aid: Education records may be disclosed for purposes related to financial aid for which the student has applied, as long as the information is necessary to make determinations of eligibility for aid, amount or conditions of aid, or enforcement of terms of aid.
Juvenile Justice System: Education records may be disclosed to state or local officials or authorities within a juvenile justice system, as long as the disclosure is made pursuant to a state law.
Studies: Education records may be disclosed to organizations that are conducting studies for educational agencies or institutions in connection with the development or administration of predicative tests or student aid programs, or studies that are intended to improve educational instruction. Such studies must not permit identification of parents or students by anyone other than representatives of the organization. Furthermore, the personally identifiable information must be destroyed when no longer needed for the study.
Accreditation: Education records may be disclosed to accrediting organizations for purposes of conducting accreditation procedures.
Dependent Students: Education records may be disclosed to the parents of a dependent student as defined by the IRS.
Health and Safety Emergencies: Education records may be disclosed in connection with a health or safety emergency. In making a determination under paragraph (a) of this section, an educational agency or institution may take into account the totality of the circumstances pertaining to a threat to the health or safety of a student or other individuals. If the educational agency or institution determines that there is an articulable and significant threat to the health or safety of a student or other individuals, it may disclose information from education records to any person whose knowledge of the information is necessary to protect the health or safety of the student or other individuals.
Court Orders and Subpoenas: Education records may be released in compliance with a court order, such as a subpoena, but schools must first make a “reasonable effort” to provide notice to parents or students. In the case of law enforcement or federal grand jury subpoenas, the issuing court or agency may, for good cause, order the school not to disclose the existence or contents of the subpoena or the records released pursuant to the subpoena. However, the Act amended this notification requirement by adding an exception stating that schools do not have to notify a parent if the court had already given the parent notice as a party in specified types of court proceedings unless the parent is a party to a court proceeding involving child abuse and neglect or dependency matters, and the order is issued in the context of that proceeding.
Victims of Violent Crimes or Non-Forcible Sex Offenses: The disclosure, subject to the requirements in §99.39, is to a victim of an alleged perpetrator of a crime of violence or a non-forcible sex offense. The disclosure may only include the final results of the disciplinary proceeding conducted by the institution of postsecondary education with respect to that alleged crime or offense.
Disciplinary Proceedings at Postsecondary Institutions: The disclosure, subject to the requirements in §99.39, is in connection with a disciplinary proceeding at an institution of postsecondary education.

Student Rights Under FERPA

FERPA grants students certain rights with respect to their education records, including:

The right to inspect and review their education records: Students should submit written requests to the College Registrar and identify the record(s) they wish to inspect. The staff of the office will make arrangements for access and notify the student of the time and place where the records may be inspected.
The right to request the amendment of their education records: Students may ask the College to amend a record that they believe is inaccurate or misleading. They should write the College Registrar or the specific office involved with the record in question (e.g.
The right to consent to disclosures of personally identifiable information contained in their education records: except to the extent that the law authorizes disclosure without consent. One exception that permits disclosure without consent is disclosure to college officials with legitimate educational interests.

FERPA Amendments Over Time

FERPA has been amended eleven times since its enactment in 1974 to address emerging issues and refine its provisions. Key amendments include:

1974 Amendments: Clarified ambiguous language and limited the right of post-secondary students to inspect confidential letters of recommendation placed in their files before January 1, 1975. The amendments also provided an opportunity for students to correct any inaccurate or misleading information, and they strengthened the right of students to a hearing to challenge the content of records they believe are inaccurate, misleading, or otherwise in violation of their privacy or other rights. Finally, the amendments gave students the right to insert a written explanation regarding the contents of records.
1979 Amendments: Clarified that FERPA does not prohibit state and local educational officials from having access to student records necessary for auditing or evaluating federal- or state-supported education programs.
1990 Amendments: Allowed post-secondary institutions to disclose to the alleged victim of a violent crime the results of any disciplinary proceeding conducted by the institution against the alleged perpetrator of the crime, regardless of the outcome of the proceeding.
1992 Amendments: Exempted records created for law enforcement purposes and maintained by law enforcement units of educational institutions from FERPA's definition of education records.
1994 Amendments: Extended the right to inspect and review education records maintained by state educational agencies that are not otherwise subject to FERPA.
1998 Amendments: Clarified that schools may disclose the final results of any disciplinary proceeding in which a student has been found responsible for a crime of violence or nonforcible sex offense. Congress also added an amendment that allows post-secondary institutions to inform parents if their child has violated a law or school rule governing the use or possession of alcohol or illegal drugs. This amendment applies to post-secondary students under 21 years old, regardless of whether the student is a financial dependent for tax purposes. However, the amendment does not supersede any state laws that may prohibit such disclosure. The regulations also clarified that student “dates of attendance” that may be released as directory information includes the academic terms during which a student was enrolled, not the student’s daily presence in school.
2000 Amendments: Clarified that FERPA does not prohibit educational institutions from disclosing information about registered sex offenders on their campuses.
2001 Amendments: As part of the PATRIOT Act, Congress added an amendment allowing the attorney general or a designated representative of the attorney general to request a court order requiring an educational institution to permit the attorney general to collect, retain, disseminate and use education records relevant to an authorized investigation or prosecution of an act of domestic or international terrorism.
2002 Amendments: Congress made technical corrections to the text of the statute.
2008 Regulations: Excluded "grades on peer-graded papers before they are collected and record by a teacher" from the definition of "education records." The amendments also changed the definition of “personally identifiable information” to include a definition for “biometric record.” Under the regulations, biometric information includes “fingerprints; retina and iris patterns; voiceprints; DNA sequence; facial characteristics; and handwriting.” Additionally, the 2008 regulations permit educational agencies and institutions to disclose education records without consent to “contractors, consultants, volunteers, and other outside parties providing institutional services and functions or otherwise acting for an agency or institution.”
2010 Amendments: In the Healthy, Hunger-Free Kids Act of 2010, Congress amended FERPA to, under certain conditions, permit educational agencies and institutions to disclose personally identifiable information from students’ education records to the Secretary of Agriculture or authorized representatives of the Food and Nutrition Service for the purpose of conducting program monitoring, evaluations, and performance measurements of programs authorized under the Richard B. The Act also amended the exception to FERPA’s general consent rule that allows schools to disclose personally identifiable information from students’ education records without consent if the disclosure is necessary to comply with a judicial order or lawfully issued subpoena. FERPA had generally required schools to make a reasonable effort to notify affected parents or eligible students before complying with an order or subpoena, in order to give the parent or eligible student the opportunity to seek to quash the order or subpoena, or to seek protective action.
2011 Regulations: Reinterpreted the statutory terms “authorized representative,” “education program,” and “directory information.” The regulations defined a previously undefined term, “authorized representative,” to include non-governmental actors as “representatives” of state educational institutions. The agency also defined “education program” as any program that is “principally engaged in the provision of education, including, but not limited to early childhood education, elementary and secondary education, postsecondary education, special education, job training, career and technical education, and adult education, regardless of whether the program is administered by an education authority.” Under FERPA, authorized representatives have access to “student or other records which may be necessary in connection with the audit and evaluation of Federally-supported education programs.” The regulations also authorize schools to publicly disclose student ID numbers that are displayed on individual cards or badges.

Addressing Common FERPA Challenges

Despite the clarity of the law, misinterpretations and abuses of FERPA are common. Some schools and colleges may invoke FERPA to deny legitimate open-records requests. Journalists and others seeking information can employ several strategies to navigate these challenges:

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Know the Exempt Records: Be familiar with the types of records that are explicitly exempt from FERPA, such as police reports and parking tickets.
Emphasize the School's Burden: Remind the agency that the burden is on them to justify withholding records, not on the requester to prove the right to access.
Seek Anonymous Statistical Records: If possible, request anonymized data to avoid the need for personally identifiable information.
Request Redacted Files: If only certain parts of a record are protected by FERPA, ask for a redacted version with the sensitive information removed.
Obtain a Waiver: If the student is cooperative, obtain a written FERPA release authorizing the disclosure of their education records.
Interview Students: Remember that FERPA only restricts the educational institution from releasing information. Students are free to share their own experiences and information.
File a Complaint: If you are denied access or amendment to your own records, you (or your parent) can file a FERPA complaint online or by calling (202) 260-3887.
Publicize the Denial: News organizations that are wrongfully denied public records on the basis of FERPA should publicize the denial, write editorials, and bring the denial to the attention of federal officials.

Enforcement of FERPA

The Department of Education (DOE) is responsible for enforcing FERPA. The DOE publishes binding rules for FERPA compliance in the Federal Register. The DOE’s Family Policy Compliance Office also issues opinion letters that, while not legally binding, serve as authoritative guidance as to what the Department does and does not consider a FERPA violation.

The Supreme Court has held that individual citizens who believe their education records have been released improperly have no right to bring suit under FERPA. The only remedy for a FERPA violation is through a DOE enforcement action. Financial penalties are to be imposed only if, after issuing a notice of violation and a plan of correction, the Department determines that the school will refuse to comply with FERPA voluntarily in the future.

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