Family Educational Rights and Privacy Act (FERPA) - Law and Higher Education
The content of and access to student records in higher education are governed primarily by the Family Educational Rights and Privacy Act (FERPA). Also known as the Buckley Amendment after its primary sponsor, New York State Senator James Buckley, FERPA was enacted into law in 1974. The two primary goals of FERPA, which applies to institutions receiving federal financial assistance, are to grant access to their records to eligible students, meaning those who are over the age of 18, and their parents, for those who are younger, while limiting the access of third parties. While FERPA applies equally to parents and eligible students who are over the age of 18 or who attend postsecondary schools, most litigation over FERPA has been filed by parents on behalf of their children rather than by students in postsecondary institutions. Even so, FERPA should be of great interest to all in institutions of higher learning.
FERPA covers educational records containing personally identifiable information about students that are preserved by educational agencies or by those acting on their behalf. Insofar as educational records may include information about more than one student, individuals reviewing records may examine only that portion of group data that is specific to themselves.
Another form of records that educational institutions preserve is so-called directory information, which includes each student’s “name, address, telephone listing, date and place of birth, major field of study, participation in officially recognized activities and sports, weight and height of members of athletic teams, degrees and awards received, and the most recent previous educational agency or institution attended by the student” (20 U.S.C. § 1232g(a)(5)(A)). Before educational officials may release directory information about students, they must provide the students (or their parents) with public notice of the categories of records that are designated as directory information while affording them a reasonable time to request that materials not be released without their consent.
Pursuant to FERPA, educational officials must annually inform parents and students over the age of 18 of their rights under FERPA before educational institutions may disclose any directory information, such as a student’s age or academic standing, to third parties. Parents and students ordinarily receive notice by a means that is reasonably likely to inform them of their rights, such as in newsletters, student handbooks, or other means designed to ensure that they receive notice. In addition to rights of access, FERPA requires educational officials to provide individuals with reasonable interpretations and explanations of information contained in their records.
FERPA includes four major exceptions for information that is not classified as educational records subject to its disclosure provisions. First, records made by educational personnel that remain in the sole possession of their makers, such as class notes and private notebooks, and that are not accessible to others except temporary instructors, are not subject to release. Second, parties may not access records kept separately by the law enforcement units of educational agencies that are used only for the agencies’ own purposes. Third, records that are made in the ordinary course of events relating to individuals who work at, but who do not attend, educational institutions, and which refer solely to their staff capacities, are not subject to disclosure. Fourth, records of students who are 18 or older or who attend postsecondary institutions that are made by physicians, psychiatrists, psychologists, or other professionals for use in treatment are not available to others except at the requests of the students.
As noted, under FERPA, parental permission or consent is transferred to eligible students who reach their 18th birthdays or who attend postsecondary institutions. Another restriction of interest is that that officials at institutions of higher learning do not have to permit students to inspect financial records in their files that include information about the resources of the students’ parents or letters of recommendation for which students have waived their rights of access. Further, officials are not required to grant access to records pertaining to individuals who are not or never have been students at their institutions, such as in cases where students applied for admission but never enrolled in a school.
FERPA permits third parties to access educational records, other than directory information, only if eligible individuals provide written consent or if the third parties qualify for one of the following nine major exceptions, for which approval is not required before they may review records.
First, officials with legitimate educational interests may access student records such as transcripts.
Second, officials representing institutions to which students have applied for admission may access records, as long as parents (or students over the age of 18) receive proper notice that the information has been sent to the receiving institutions.
Third, authorized representatives of the U.S. comptroller general, the secretary of the Department of Education, and state and local education officials with authority under state law may view student records for law enforcement purposes.
Fourth, persons who are responsible for evaluating student eligibility for financial aid may review appropriate educational records.
Fifth, members of organizations conducting studies on behalf of educational agencies or institutions developing predictive tests or administering aid programs and improving instruction may view records if doing so does not lead to the release of personal information.
Sixth, those acting in the course of their duties for accrediting organizations may review student records.
Seventh, parents of dependent children may access student records.
Eighth, in emergencies, persons who protect the health and safety of students or other persons may view records. Following the tragic shootings at Virginia Tech University, the federal Department of Education modified the regulation on this eighth point with regard to student safety. According to this modification, staff at the Department of Education will defer to the judgment of campus officials as to what constitutes an emergency as long as the officials have a rational justification for acting (34 C.F.R. § 99.32(a)(5)).
Ninth, written permission is not necessary if student records are subpoenaed or otherwise obtained through judicial orders except that individuals must be notified in advance of compliance by educational officials.
Third parties seeking disclosure of student records must have written consent from qualified individuals specifying the record(s) to be released, the reason(s) for the requested release, and to whom the information is being given. FERPA specifies that students whose records are released (or their parents) have the right to receive copies of the released materials. Educational officials must keep records of all, except exempted parties, who request or obtain access to records; these records must both explain the legitimate interests of those who were granted access and be kept with student records.
Educational agencies that maintain student records must comply with requests for reviews without unnecessary delays. Unless parties agree to the contrary, they must be granted access no later than 45 days after making requests. Agencies may not charge fees to search for or to retrieve student records, but they may require payment for copies as long as this does not effectively prevent individuals from exercising their rights to inspect and review these materials.
Individuals who disagree with the contents of educational records may ask officials to amend the files. If officials refuse to amend records within a reasonable time, parties are entitled to hearings at which hearing officers decide whether the challenged materials are accurate and appropriately included in student files. Hearings must take place within a reasonable time. If hearing officers agree that contested materials are inaccurate, misleading, or otherwise violate student rights to privacy, educators must amend them and inform the parents (or students over the age of 18) in writing of their actions. However, if hearing officers find that materials are acceptable, the materials need not be removed or amended. Individuals who have concerns over the contents of their educational records, even after hearing officers find them permissible, may add statements explaining their objections; these statements must be kept with the contested information for as long as it is maintained.
If interested parties are denied the opportunity to review their records, they may file written complaints detailing the specifics of alleged violation with the federal Department of Education’s Family Policy Compliance Office (FPCO). Complaints must be filed within 180 days of alleged violations or the date when parties knew or reasonably should have known about claimed violations. When the FPCO receives a complaint, its staff must notify officials at the offending educational institution in writing, detailing the substance of the alleged violations and asking the officials to respond, before considering whether to proceed with investigations. If, after investigations are completed, officials at the FPCO agree that violations occurred, the Department of Education can sanction institutions by withholding payments, issue orders to compel compliance, or terminate the institution’s eligibility for funding if officials refuse to comply within a reasonable time.
Litigation Relating to FERPA
The Supreme Court addressed its only two cases involving FERPA in 2002. In Owasso Independent School District v. Falvo, the Court, in permitting a private claim to proceed, held that peer grading, whereby teachers in K–12 schools permit students to grade the papers of classmates, does not turn the student papers into educational records covered by FERPA. The Court was of the opinion that school board officials did not violate FERPA by permitting teachers to use the practice over a mother’s objection, insofar as grades do not become official records until they are maintained or saved by educational staff.
Four months later, in Gonzaga University v. Doe, a student unsuccessfully challenged a university official’s unauthorized release of information about him that led to the denial of his request for certification as a public school teacher. The dispute arose when a certification specialist in the administrative offices of the dean in the School of Education, on overhearing a conversation about the student’s alleged inappropriate conduct with a female friend, conducted an unauthorized investigation, contacted the state agency for teacher certification, and discussed the situation with officials in that office. Based on the improper release of information without the student’s knowledge or permission, the student filed suit, challenging the actions of the university officials.
In Doe, the Supreme Court essentially repudiated that part of its decision in Falvo that allowed a private claim to proceed, ruling that FERPA’s nondisclosure provisions do not permit aggrieved parties to file suits against institutions in disputes over access to, or impermissible release of, their educational records. Instead, in a point that should be of great significance for postsecondary institutions, the Court concluded that the only remedy available to parties with FERPA-related grievances is to petition the Department of Education, asking it to impose sanctions.
Charles J. Russo
- Individuals with Disabilities Act 20 U.S.C. §§ 1400 (2004).
- Code of Federal Regulations, 34 C.F.R. §§ 99.1 et seq.
- Family Educational Rights and Privacy Act, 20 U.S.C. § 1232g.
- Gonzaga University v. Doe, 536 U.S. 273 (2002).
- Owasso Independent School District v. Falvo, 534 U.S. 426 (2002).