Running head: FERPA Simpson 1

Family Education Rights and Privacy Act of 1974:

A Law Commentary

Crystal Nicole Simpson

Georgia Southern University

EDLD 8431, Fall 2014

Dr. Copeland

November 9, 2014

Running head: FERPA Simpson 2

Family Education Rights and Privacy Act of 1974:

A Law Commentary

The Family Education Rights and Privacy Act of 1974 (FERPA) (20 U.S.C. 1232g; 34

CFR Part 99) is a law that protects students privacy by providing guidelines on maintenance and

release of the educational records of students (Alexander & Alexander, 2011; U.S. Department

of Education, 2014). There are two main purposes of the act. The first is to give students the

right to review their educational record, prevent the release of personally identifiable

information, and to have a copy of the institutions policy on record access (Electronic Privacy

Information Center, n.d.). The second is to prohibit the release of information without consent of

the student (Electronic Privacy Information Center, n.d.).

History of FERPA

FERPA is also known as the Buckley Amendment after Senator James Buckley who

sponsored the amendment (U.S. Department of Education, 2014). FERPA is divided into five

subparts. This paper will discuss each subpart and court cases that spoke to the issues covered

within the subparts of the statute.

Subpart A

Subpart A deals with general information regarding FERPA. 34 CFR 99.1 notes that

any educational institution that receives funds from the Secretary of Education must follow the

regulations set forth by FERPA (Campbell & Rodriguez, 2011). For the purpose of this law

commentary, the focus will be on higher education institutions that fall under FERPA. 34 CFR

99.3 states that an education record is directly related to a student and is maintained by the

institution. Records that are not covered by FERPA as listed in 34 CFR 99.3 include: records

made as memory aids, law enforcement records, employment records, records of a higher

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education student that are medical in nature, records received after a student leaves and

institution and not related to their attendance as a student, and grades on peer-graded papers prior

to being recorded by a teacher. It was determined in Owasso Independent School District v.

Falvo (2002) peer-graded papers were excluded from education records (Electronic Privacy

Information Center, n.d.).

There are records not covered by FERPA. DeFeo v. McAboy (2003) reinforced that law

enforcement records are not education records and are therefore not protected by FERPA. Bauer

v. Kincaid (1991) was a case in which the student newspaper wanted criminal records because

the state had an open records law but the university denied the request. It was determined that

these records were not covered by FERPA.

Subpart A also lists the rights of parents and students, the information that must be

provided to parents and students annually, and provisions that apply to law enforcement units.

Subpart B

Subpart B discusses the rights to inspect and review educational records. Parents or

students are allowed to review educational records according to 34 CFR 99.10. When a request

is make the institution must comply within a reasonable time, no more than 45 days, from the

date of request (34 CFR 99.10). There are limitations, which include records that contain

information on multiple students, financial records of parents cannot be released to students, and

confidential letters of recommendation (in which the student has waived their right to review)

(34 CFR 99.12).

Subpart C

Subpart C covers procedures for education records amending. If a parent or student

believes the records are incorrect, misleading, or in violation of the students rights of privacy,

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he or she can ask the educational agency or institution to amend the record (34 CFR 99.20).

The institution can decide if an amendment is needed and must inform the parent or student of

their right to a hearing if they choose not to amend the record. The way the hearing is to be

conducted is covered in 34 CFR 99.21 and 34 CFR 99.22.

Subpart D

Subpart D discusses personally identifiable information in education records. Personally

identifiable information (PII) is information that can be linked to a students identity such as

name, social security number, and date of birth to name a few (Campbell & Rodriguez, 2011).

Before any PPI is shared the student must sign a consent form (34 CFR 99.21). Exceptions to

the consent are covered in 34 CFR 99.31. In the case of United States v. Miami University

(2002) the court ruled that disciplinary records are education records and cannot be released. 34

CFR 99.39 allows the disclosure of disciplinary proceedings records concerning crimes of

violence such as arson, homicide, and forcible sex offenses. However, as noted in the opinion of

the course in United States v. Miami University (2002) the information released in these records

can only include certain information including the student name, violation, and sanctions

imposed.

Within subpart D in 34 CFR 99.37 directory information can be released. Directory

information is defined as information in an educational record that is not considered an invasion

of privacy if shared including name, email address, major and dates of attendance to name a few

(34 CFR 99.3). Institutions must inform parents and students of directory information and

allow a sensible amount of time to request nondisclosure of directory information (U.S.

Department of Education, 2014).

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Subpart E

Subpart E explains the enforcement procedures of FERPA. The loss of federal funding is

the penalty for any institution or agency found in violation of FERPA (Alexander & Alexander,

2011). It has been a topic of debate if someone whose personal information was released in a

violation of FERPA can attain monetary damages. The U.S. Supreme Court answered this

question with two different cases. Owasso Independent School District v. Falvo (2002) and

Gonzaga University v. Doe (2002) determined that a student or parent could not receive

monetary damages. Gonzaga University v. Doe (2002) specifically discussed the enforcement of

damages under Section 1983 of the Civil Rights Act (Alexander & Alexander, 2011). The

courts opinion stated, FERPAs nondisclosure provisions contain no rights-creating language,

they have an aggregate, not individual, focus, and they serve primarily to direct the Secretary of

Educations distribution of public funds to educational institutions. They therefore create no

rights enforceable under 1983 (Gonzaga University v. Doe, 2002).

Amendments

Throughout the 40 years of FERPA since it was enacted in 1974, there have been nine

amendments made when needed due to new circumstances. The first amendment, known as the

Buckley/Pell Amendment, occurred the year FERPA was introduced with the purpose of

addressing vagueness and concerns of students, parents, and institutions (U.S. Department of

Education, 2014). In 1978, there was an irregularity in how the U.S. Department of Education

interpreted FERPA and an amendment stating that education official conducting audits or

reviews did have access to education records (Electronic Privacy Information Center, n.d.).

The next two amendments dealt with law enforcement. Victims of violent crimes were

allowed access to the disciplinary hearing results of the perpetrator in 1990 (Electronic Privacy

FERPA Simpson 6

Information Center, n.d.). Law enforcement records became exempt from the protection of

FERPA in 1992 since they are not part of education records (Electronic Privacy Information

Center, n.d.).

In 2008, biometric information was added under personally identifiable information

(Electronic Privacy Information Center, n.d.). Another change occurred in conjunction with the

USA PATRIOT Act when the attorney general was granted permission to request court orders

for educational records relevant to investigations or prosecutions of terrorism (Electronic Privacy

Information Center, n.d.).

These are just a few of the nine amendments made to FERPA. The amendments made by

Congress and the U.S. Department of Education show that times are changing and for the statute

to fully protect students that it needs to update as needed.

Conclusion

FERPA is a statute that affects the daily workings of institutions of higher education.

Employees that deal with personally identifiable information must understand the requirements

of FERPA and abide by the procedures. There are times when the interpretation of FERPA can

vary from institution to institution. In fact Senator James L. Buckley the sponsor of FERPA has

stated, One likes to think common sense would come into play. Clearly, these days, it isnt true.

The law needs to be revamped. Institutions are putting their own meaning into law (File, 2009).

This came in response to sports programs citing FERPA as a reason to not release information.

In fact, FERPA was cited as a reason not to release documents by the University of Georgia in

the recent investigations of reported misconduct committed by Todd Gurley (Towers, 2014).

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Given the history of amending FERPA and the fast changing culture and technology,

paired with Senator Buckleys dissatisfaction with the various interpretations, FERPA is far from

a stagnant statute and will probably see many changes to come in the future.

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References

Alexander, K.W., & Alexander, K. (2011). Higher education law: Policy and perspectives. New

York, NY: Routledge.

Bauer v. Kincaid, 759 F. Supp. 575 (W.D. Mo. 1991)

Campbell, E., & Rodriguez, B. (2011). FERPA 101: FERPA basics [PowerPoint slides].

Retrieved from http://www2.ed.gov/policy/gen/guid/fpco/doc/ferpa101slides.pdf

DeFeo v. McAboy, 260 F. Supp. 2d 790 (2003)

Electronic Privacy Information Center. (n.d.). Family educational rights and privacy act

(FERPA). Retrieved from http://epic.org/privacy/student/ferpa/default.html

File, P. (2009, October 2). FOIA and access: College sports programs cite FERPA in

withholding information. Shila Center for the Study of Media Ethics & Law. Retrieved

from http://www.silha.umn.edu/news/summer2009.php?entry=195063

Gonzaga University v. Doe (01-679) 536 U.S. 273 (2002)

Owasso Independent School District v. Falvo, 534 U.S. 426 (2002)

The Family Educational Rights and Privacy Act (FERPA), 20 U.S.C. 1232g; 34 CFR Part 99

(1974).

Tower, Chip. (2014, November 4). E-mailed video alerted UGA of Gurleys troubles. The

Atlanta Journal-Constitution. Retrieved from

http://www.myajc.com/news/sports/college/mcgarity-ugas-investigation-into-gurley-

matter-too/nhzLz/?ecmp=ajc_social_facebook_2014_sfp#25180a2d.3307635.735542

U.S. Department of Education. (2014). Family educational rights and privacy act (FERPA).

Retrieved from http://www2.ed.gov/policy/gen/guid/fpco/ferpa/index.html

United States v. Miami University, 294 F. 3d 797 (6th Cir. 2002)