FERPAFamily Educational Rights and Privacy Act

Ross J. Kosinski, Ph.D.Dean of Students

From Managing the Privacy of Student Records, by Clifford A. Ramirez, LRP Publications, 2002.

From FERPA, Clear and Simple, The college professional’s Guide go Compliance., by Clifford A. Ramirez, John Wiley and Sons, Inc., 2009.

From The Registrar’s Companion, An overview of the 11 Federal Laws Every Registrar Should Know, by Stacey L. Winick, Esq., LRP Publications, 2006.

From The Federal Regulation of Student Affairs: An Update on FERPA and the Clery Act, by John Wesley Lowery, NASPA/Stetson, Student Affairs Law and Policy Conference, 2007.

From The Fundamentals of Fundamental FERPA, by Steven J. McDonald, NASPA/Stetson, National Conference on Law, Higher Education, 2009.

From ASJA Law and Policy Report, 1-29-09, No. 309, by Gary Pavela, LRP, 2009.

FERPA – Family Educational Rights and Privacy Act

1974 – Buckley Amendment (Sen. Buckley, NY)Federal Statute governing privacy of student education records and student informationGoverned under the Department of Education’s;

– Family Policy Compliance Office (FPCO)• Advises institutions about FERPA• Investigates complaints of non-compliance with FERPA• Resolves complaints of non-compliance with FERPA

– violation does not need to represent a “policy or practice” – no provision under FERPA for student to sue because of a violation – institution allowed to voluntarily correct– could lose federal funding - to date, this has never occurred

• www.ed.gov/offices/OM/fpco.htlm• FERPA@ed.gov for Education Officials only

FERPA: a regulation

FERPA’s regulations are governed under the Department of Education (FPCO) because:

Universities receive ________ ________ from the Department of Education.

FERPA: a regulation

FERPA’s regulations are governed under the Department of Education (FPCO) because:

Universities receive federal funding from the Department of Education.

FERPA FERPA was written specifically to guarantee students

four primary rights:

The right to:• _________ their education records.• _________ their education records.• _________ over the disclosure of their education records.• _________ for an alleged violation of their FERPA rights.

.

FERPA FERPA was written specifically to guarantee

students three primary rights:

The right to:1. inspect their education records.2. ______ their education records.3. ______ the disclosure of their education records.4. __________ for an alleged violation of their FERPA rights.

FERPA FERPA was written specifically to guarantee

students three primary rights:

The right to:1. inspect their education records.2. amend their education records.3. ______the disclosure of their education records.4. __________ for an alleged violation of their FERPA rights.

FERPA FERPA was written specifically to guarantee

students three primary rights:

The right to:1. inspect their education records.2. amend their education records.3. control the disclosure of their education records.4. __________ for an alleged violation of their FERPA rights.

FERPA FERPA was written specifically to guarantee

students three primary rights:

The right to:1. inspect their education records.2. amend their education records.3. control the disclosure of their education records.4. file a complaint for an alleged violation of their FERPA

rights.

Note: rights are transferred from parents to students at 18 years of age or if student is enrolled in a postsecondary institution. Parents may retain rights if student is still their dependant under the federal tax code.

FERPA

MIT, relatives settle suit over student suicide

Elizabeth Shin had been treated for medical problems and suicide threats at MIT before she set herself on fire in her dorm room in 2000.

By Marcella Bombardieri, Globe Staff  |  September 2, 2006

Law allows disclosure of personal information when risk of safety is evident. This case and the VT case highlight the need for more relaxed privacy policies when addressing students with serious behavioral needs.

FERPA (Family Rights and Privacy Act) has been relaxed in this regard.

                                              

                  Elizabeth Shin had been treated for medical problems and suicide threats at MIT before she set herself a fire in her dorm room in 2000.

Policy Changing Case

Note: health and safety threat – must be significant and disclosed to appropriate individuals

FERPA

Institutions must advise students of their FERPA rights at least __________.

FERPA

Institutions must advise students of their FERPA rights at least annually.

What we do:• FERPA is first addressed with students at “New Student

Orientation”. • All students sign a statement that they are responsible for the

contents of the Student Handbook.• Annual notification of their FERPA rights is made available to

students via email that their FERPA rights can be viewed in the online Student Handbook.

FERPA

Definitions

1. Student2. In attendance 3. Applicant and Application Records4. Education Records 5. Education Official6. Directory Information

FERPA

Definitions - Student

A student is any individual who:1. is, or has been ___ _________, 2. has a “________ ________” 3. and for whom MWU ___________

educational records.

FERPADefinitions - Student

A student is any individual who:1. is, or has been in attendance, 2. has a “_________ _________”3. and for whom MWU _______educational records.

in attendance (registered and enrolled)

FERPADefinitions - Student

A student is any individual who:1. is, or has been in attendance, 2. has a “student status” 3. and for whom MWU ______ educational records.

in attendance (registered and enrolled) student status (may not be enrolled, but on a LOA)

FERPADefinitions - Student

A student is any individual who:1. is, or has been in attendance*, 2. has a “student status” **3. and for whom MWU maintains educational

records

*in attendance (registered and enrolled) **student status (may not be enrolled, but was

– on an LOA)

FERPA

Definitions – Applicant

An applicant is not defined as a “student” under FERPA and is not protected under FERPA.

An applicant may be accepted, but does not yet attend and is not participating in the educational program.

However, when does student status begin?Deposited?New Student Orientation?First day of classes?

Note: FERPA does not comprehensively define, but does stress “participation in the educational programs” or “enrolled” as a key, which is what we use at MWU.

FERPADefinitions – Application RecordsApplication records include:• Transcripts• Letters of recommendation• Personal statements

Some Applicant records should be destroyed after matriculation otherwise,

they will become education records and subject to FERPA.

Note: school must make reasonable effort to notify the student that disclosure of education records will be made to an institution, e.g., residency

Best to have student sign a release when writing letters of recommendation

FERPA

Definitions – Education record

An education record is: ____ _______ that _________ a student, and that is_________ by the educational institution (or by an educational affiliate).

FERPA

Definitions – Education record

An education record is: any record that _________ _______ a student, and that is_________ by the educational institution (or by an educational affiliate).

FERPA

Definitions – Education record

An education record is: any record that personally identifies a student, and that is________ by the educational institution (or by an educational affiliate).

FERPA

Definitions – Education record

An education record is: any record that personally identifies a student, and that ismaintained by the educational institution (or by an educational affiliate).

FERPA

99.3 Records means any information recorded in any way, including, but not limited to, handwriting, print, computer media, video or audio tape, film, microfilm, and microfiche.However:There are records that are maintained by a faculty member or an educational institution that qualify as exceptions under FERPA.

FERPA

Exceptions to Education Records

1. Sole Possession Records

Education records are records that are, by their nature, shared or have the potential to be shared with at least one education official.

Note: 1) note to self about a student is not an education record

2) personal opinions are not thought of as education records

FERPA

Definitions – Education Official

An education official is a person:• with a legitimate educational interest in having access to

student educational records;• employed by, or under contract to, the institution in an

administrative, supervisory, academic, research, or other support staff position or in a position performing a special task, such as an attorney, an auditor, a preceptor or even a student;

• serving on an institutional governing board

FERPA

Exceptions to Education Records continued

1. Sole Possession Records2. Law Enforcement Records

Law enforcement records are created and maintained by a law enforcement/security agency for the purposes of law enforcement/security

unlessthose records are shared with educational officials.

FERPA

Exceptions to Education Records continued

1. Sole Possession Records2. Law Enforcement Records3. Employment Records

Employment records are only educational records if employment is conditional upon the person being a student. Example: A TA must be a student so the TA’s employment records are also education records.

FERPA

Exceptions to Education Records continued

1. Sole Possession Records2. Law Enforcement Records3. Employment Records4. Medical Records

Medical records can be education records if they are used to justify or support a student’s actions or needs. Examples: Documentation for testing accommodations or for clinical rotation needs

FERPA

Exceptions to Education Records continued

1. Sole Possession Records2. Law Enforcement Records3. Employment Records4. Medical Records5. Alumni Records

Alumni records are not education records because the alum is not a “student”. The alum’s student records are still considered their education records though.

FERPA

Definitions – Directory Information

Directory information is information in an educational record not generally considered __________ or an invasion of the student’s __________ if disclosed, so it can be released without a student’s written consent – with a couple of stipulations.

FERPADefinitions – Directory Information

Directory information is information in an educational record not generally considered harmful or an invasion of the student’s _______ if disclosed, so it can be released without a student’s written consent – with a couple of stipulations.

FERPADefinitions – Directory Information

Directory information is information in an educational record not generally considered harmful or an invasion of the student’s privacy if disclosed, so it can be released without a student’s written consent – with a couple of stipulations.

Note: Institutions must identify Directory Information and allow students the right to restrict the disclosure of their Directory Information, which it does in Appendix 3 of the Student Handbook.

MWU policy is: “Do not disclose Directory Information unless required to do so legally” - always check with Registrar or my office.

FERPA

Definitions – Directory Information

FERPA identifies information that may be included and that must not be included in directory information based upon it being public or private and whether it may be a danger to the student being described or identified by the information.

FERPA also leaves it to the discretion of an institution to release directory information or not to release directory information – MWU does not release, with exception that the Registrar may identify that someone is a student and is in a particular program, unless for health or safety jssues.

FERPA

May include:Name

Address

Telephone number

Email address

Major field of study

Dates of attendance

Enrollment status

Degrees and awards received

Date and place of birth

Most recent previous school attended

Photographs

Must not includeStudent ID Number

Social Security Number

Race

Ethnicity

Nationality

Gender

Directory Information

FERPA

Prior Written Consent

“When in doubt, think prior written consent.”

Leroy Rooker, former director of the

Family Policy Compliance Office

Which is MWU policy

FERPA

Student Handbook – Appendix 3: Guidelines for Access to and Disclosure of Educational Records Maintained by Midwestern University

A. Definitions

B. Inspection and Review of Records

C.Amendment of Education Records

D.Disclosure of Personally Identifiable Information from Education Records

E. Annual Notification of Rights

FERPA Examples of signed releases that SFS uses • Code of Responsibility for Student Employees

FERPA

Q. Does HIPAA change or modify any of FERPA’s provisions regarding disclosure of Medical Records or Educational Records?

A. No – HIPAA’s privacy rule expressly states it does not affect or change FERPA. FERPA is the protector of the privacy of information entered into a student’s record, including health-related information – as long as it pertains to educational records.

FERPAQ. What are some of the conditions or agencies whereby

education records could be disclosed without a student’s consent?

A. • School officials with a legitimate educational interest

• Specified officials for audit or evaluation

• Appropriate individuals/parties in connection with financial aid to a student

• Accrediting organizations

• To comply with judicial order or lawfully issued subpoenas

• Appropriate officials/individuals in cases of health and safety emergencies, e.g., suicide, alcohol/substance abuse in minors, acts of violence

FERPASome things we should not do:

• Post a list of student grades by name, SSN or Student ID#

• Leave graded tests/papers in a stack for students to sort through and pick up

• Discuss a student’s education records with others (education officials or not) where you might be overheard

• Release student information by phone or email without first verifying the identity of the recipient and having the student’s permission to do so if necessary

• Dispose of old student records in the normal trash

FERPA

Other examples of possible FERPA violations and Accreditation violations

• Not keeping student files locked and secured or in public view

• Keeping “Unofficial Files” to circumvent FERPA

• Having a process for addressing and resolving student grievances/complaints

• Failing to list accrediting agency’s contact information for students in case of grievances/complaints

• Providing a copy of all such grievances/complaints to the President’s office

FERPA

Questions1. Under FERPA, when college students turn 18, the privacy

rights in their education records – previously held by their parents – revert exclusively to them.

FERPA

Question1. Under FERPA, when college students turn 18, the privacy

rights in their education records – previously held by their parents – revert exclusively to them.

Answer

False – any age if in a postsecondary school

- does not provide students exclusive rights

- health and safety

- violent crimes/sexual offender

FERPA

Questions2. Under FERPA, parents who claim a college student as a

dependent for U.S. federal income tax purposes cannot be denied access to the student’s education records.

FERPAQuestions2. Under FERPA, parents who claim a college student as a

dependent for U.S. federal income tax purposes cannot be denied access to the student’s education records.

Answer

False – key word is “may” disclose to parents

- FERPA permits the release, does not mandate it

FERPA

Questions3. Professors and administrators may have access to student

records for any reasonable purpose, if they maintain a full and complete record of such access.

FERPA

Questions3. Professors and administrators may have access to student

records for any reasonable purpose, if they maintain a full and complete record of such access.

Answer

False – education officials must have a legitimate educational interest. A faculty advisor could have lawful

access to an advisee’s education record for the purpose of providing appropriate academic advising. A preceptor may not.

FERPA

Questions4. FERPA precludes college officials from discussing any

personal knowledge or observations about a student with prospective employers or other third parties, without the student’s written consent.

FERPA

Questions4. FERPA precludes college officials from discussing any

personal knowledge or observations about a student with prospective employers or other third parties, without the student’s written consent.

Answer

False – Personal knowledge or observation would not be considered an educational record and

would not be protected under FERPA.

FERPA

Questions5. FERPA is interpreted to keep private those aspects of a

college student’s educational life that relate to academic matters, not to non-academic disciplinary violations.

FERPA

Questions5. FERPA is interpreted to keep private those aspects of a

college student’s educational life that relate to academic matters, not to non-academic disciplinary violations.

Answer

False – disclosure of disciplinary records are protected by FERPA, unless they relate to crimes of violence, sexual offense, or violations of any law concerning the use of controlled substances or possession of alcohol if the student is under 21.

FERPA

Questions6. Group grading of student assignments by other students is

precluded by FERPA.

FERPA

Questions6. Group grading of student assignments by other students is

precluded by FERPA.

Answer

False – grades apparently need to be collected and recorded for them to be viewed as education records.

FERPA

Questions7. FERPA emergency disclosure provisions referring to a

“significant threat” include a student’s threat to self or others.

FERPA

Questions7. FERPA emergency disclosure provisions referring to a

“significant threat” include a student’s threat to self or others.

Answer

True – Health and Safety Emergency exception

FERPA

Questions ?