Understanding FERPA & the Family Personal Privacy Act of 2002

1. Understanding FERPA & the Family Personal Privacy Act of 2002 Russell Long Office of Institutional Research and Planning Clemson University

2. Topics • Laws Covering Student Information in South Carolina • Guidelines to Ensure Compliance • Brief Quiz

3. Laws Covering Student Information • The Family Educational Rights and Privacy Act of 1974 and amendments (20 U.S.C. 1232g, 34 CFR § 99). • The South Carolina Family Personal Privacy Act of 2002 (SC Code 30-2-10 et. seq.)

4. Family Educational Rights and Privacy Act (FERPA)

5. What is FERPA? FERPA is an acronym for the Family Educational Rights and Privacy Act (20 U.S.C. 1232g, 34 CFR § 99). Congress enacted FERPA, also referred to as the "Buckley Amendment," in 1974. FERPA conditions federal educational funding on providing student access to, and maintaining the privacy of, education records. Faculty, staff, administrators and other university officials are required by FERPA to treat education records in a legally specified manner.

6. Who is Protected Under FERPA? • The rights under FERPA apply to eligible students. An eligible student is an individual who is, or has been, in attendance at your institution. • At Clemson, FERPA rights begin when the student attends the first day of class. But it is left up to your institution to set when rights begin. • Applicants who are denied admission or who never attend are not covered under FERPA.

7. What are education records? Education records are information that: directly relates to a student and is maintained by an educational agency or institution or by a party acting for the agency or institution.

8. What are education records? Education records may include but are not limited to: • Student folders in Admissions/Registrar/Financial Aid/Advising/Placement offices (including any notes made in the folder) • Student classroom activity or homework that is maintained by the institution as part of the student’s permanent school record • Reports and records – computer generated or other • Class rolls and grade books, papers and tests • Application forms for student organizations/activities • Memos between school employees • Photographs • Theses and dissertations

9. What are education records? The storage medium in which you find this information does not matter. A student educational record may be: • A document in the registrar’s office • A computer printout in your office • A class list on your desktop • A computer display screen • Notes you have taken during an advising session

10. What is not an Education Record? FERPA has a number of key exceptions to the definition of education records. Those include: • Records of the University's Office of Public Safety • Employment records where employment is not connected to student status • Medical and mental health records used only for the treatment of the student • Alumni records that do not relate to the person as a student • Records made by instructional, administrative and educational personnel not shared with others

11. What is not an Education Record? While some records, like medical treatment records, may not be an education record under FERPA, they are confidential under other provisions of law (HIPPA: Health Insurance Portability & Accountability Act) and professional ethics requirements. If records of the Institution’s Office of Public Safety are shared with others on campus, such as Student Development for disciplinary reasons, they become education records.

12. What is Personally Identifiable Information? Personally identifiable information includes but is not limited to: • the student's name • the name of the student's parent or other family member • the address of the student or student's family • a personal identifier, such as the student's social security number or student number • a list of personal characteristics that would make the student's identity easily traceable • other information that would make the student's identity easily traceable.

13. What is Directory Information? FERPA permits institutions to specifically define some education record information as directory information not confidential under FERPA. This is information that is generally not considered harmful or an invasion of privacy if disclosed. FERPA has defined "directory information" as:

14. Directory Information • Name of student • Campus address • Permanent address • Campus phone number • University e-mail address • Major field of study • Degrees and awards received • Dates of attendance • Grade level • Enrollment status (i.e., full-time, part-time, undergraduate, graduate) • Name of institution last attended • Participation in official sports and activities • Height and weight of members of athletic teams • Date and place of birth

15. Student Rights Under FERPA FERPA affords students certain rights with respect to their education records. Specifically, it affords students the right to: • inspect and review their education records • request the amendment of inaccurate or misleading records • consent to disclosure of personally identifiable information contained in their education record • file a complaint with the U.S. Department of Education concerning alleged failures by your institution to comply with this law

16. Student Access to Education Records • Students and former students have the right to inspect and review their education records through established procedures within a maximum of 45 days after a written request is received. • The institution is not required to provide a copy of the education record unless failure to do so would deny access. Records cannot be destroyed if request is pending. Fees can be charged unless cost prohibits access. • Students and former students have the right to review records of requests for disclosure of their personally identifiable information. Institutions need to maintain records of requests and make them available to students.

17. Consent to Disclosure • The student can provide a written release to the institution giving specific consent to the disclosure of the student's education records. The release needs to be dated and signed and must describe the records, the purpose for the release, list to whom the records can be given and a time for how long the release is effective. • A faculty member should have a student sign a release before providing a job reference or a reference for the student for certain academic purposes, such as scholarships or awards.

18. Consent to Disclosure • If a record contains personally identifiable information on other students, delete that information before disclosing the record for the student who has provided written consent. • The Registrar is the University official responsible for keeping all official academic education records. Only the Office of the Registrar may release an official transcript. All requests for education record information originating from outside the institution should be directed to the Office of the Registrar.

19. FERPA Does Not Grant the Student Rights to Access: • Education records (such as print-outs of waitlisted classes and rosters) that contain information on more than one student. (The student may review only the specific information about him/herself) • Financial records of the student’s parents • Confidential letters of recommendation, for which the student has signed a waiver, and which are related to admission to the Institution

20. Parent Rights Under FERPA • When a student reaches the age of 18 or begins attending a postsecondary institution regardless of age, FERPA rights transfer to the student. • Parents may obtain directory information at the discretion of the institution. • Parents may obtain non-directory information (grades, GPA, etc.) only at the discretion of the institution AND after it has been documented that their child is legally a dependent as defined by the IRS. • The Office of the Registrar maintains signed consent from students who have chosen to allow release of non-directory information to parents. Parents of undergraduate students should be referred to the Office of the Registrar.

21. Spouse Rights Under FERPA The spouse of a student has no rights under FERPA to access the student’s education record.

22. Can a student refuse to allow directory information to be released? Under FERPA, the institution must allow a student to opt out of the release of directory information. Students must complete a form to request that the institution keep all directory information restricted from release. Directory information in a restricted record may not be released without written permission from the student, unless the request for release fits certain exceptions.

23. Disclosure of Records Without Specific Student Consent FERPA provides many specific exceptions when institutions can disclose education records without specific student consent. Many of these exceptions are provided in the regulations to allow for the reasonable and practical workings of an educational institution.

24. Disclosure of Records Without Specific Student Consent Some of the most common exceptions include: • Disclosure to other school officials within the institution whom the institution has determined to have legitimate educational interests • Disclosure to officials of another school where the student seeks to enroll • Disclosure in connection with financial aid for which the student has applied • Disclosure to accrediting organizations to carry out their accrediting function • State and local officials or authorities to whom such information is specifically allowed pursuant to State statute • Disclosure to parents of a dependent student, as defined by the IRS Code • Disclosure to comply with a judicial order or lawfully issued subpoena • Disclosure in connection with a health or safety emergency • Disclosure to military recruiters

25. Who is a School Official? A school official is a person employed by the institution in an administrative, supervisory, academic, research or support staff position; a trustee or outside contractor such as an attorney or auditor acting as an agent for the institution; a student or other person serving on an official committee, such as a disciplinary or grievance committee, or who is assisting another school official in performing his or her tasks.

26. What is a Legitimate Educational Interest? A school official has a legitimate educational interest in the protected education records if the official is: • Performing a task that is specified in the official's position description or contract agreement; related to a student's education; or related to the discipline of a student • Providing a service or benefit relating to the student or student's family, such as health care, counseling, job placement, or financial aid • Maintaining the safety and security of the campus

27. Legitimate Educational Interest Legitimate educational interest does not include simply having a curiosity about the academic record or disciplinary proceedings with regard to a student without some legitimate academic reason. Thus, all records of all students are not open to all faculty or staff at the institution. Consult with the Office of the Registrar if you have any question about whether a legitimate educational interest exists in connection with a request for student data.

28. Sanctions or Liability Risks for a FERPA Violation FERPA provides for a complaint procedure to the United States Department of Education with an ultimate sanction of withholding of federal funding. While there is generally no private cause of action directly under FERPA, students may seek to hold the University or individuals liable under common law tort theories such as invasion of privacy. Faculty, staff, administration or students who violate the University's FERPA policy should be subject to corrective or disciplinary action, depending on the individual circumstances.

29. Recent Issues Impacting FERPA • Solomon Amendment • Higher Education Amendments • Case Law • USA PATRIOT Anti-Terrorism Act • Campus Sex Crimes Prevention Act • Electronic Signatures and FERPA

30. Solomon Amendment10 U. S. C. A. §983(d)(1) (Supp. 2005) • When law schools began restricting the access of military recruiters to their students because of disagreement with the Government's policy on gays in the military, Congress responded in 1996 by enacting the Solomon Amendment, Interim Rule 2000. Prior to 9/11, the Department of Defense (DOD) interpreted the Amendment as merely requiring schools to give recruiters access to the campus, but not requiring schools to affirmatively assist the recruiters. After 9/11, the DOD indicated that it interpreted the Amendment to require schools to treat military recruiters in the same way that they treat all other employment recruiters. In 2004, Congress amended the Solomon Amendment to reflect the DOD policy.

31. Solomon Amendment10 U. S. C. A. §983(d)(1) (Supp. 2005) • Institutions of higher education will be denied federal funding if ROTC access to campus or military recruiting on campus is prevented. • Includes any funds made available for the Department of Defense, Departments of Labor, Health and Human Services, and Education, and Related Agencies Appropriations Act.

32. Solomon Amendment • Student Recruiting Information (SRI) is not synonymous with FERPA’s Directory Information. • Requests for SRI must be honored unless the Secretary of Defense determines that the institution of higher education involved has a longstanding policy of pacifism based on historical religious affiliations. • Must release SRI even if the institution does not release FERPA directory information.

33. Higher Education Amendments • Directory Information • Defines Dates of Attendance – does not include daily attendance records • Permits E-mail address. • Eliminates Class Rosters and Class Schedules • Rights of Students clarifies that students applying for admission to another component of the same institution have no FERPA rights until they enroll in that component.

34. Higher Education Amendments • Disclosures to the Attorney General Disclosure to the Attorney General will only be made as part of an investigation to enforce “Federal legal requirements of federally supported education programs.” • Disclosure to Parents of Dependent Students Allows institutions to deny access to specific items in a student’s education record if the parent that claims the student does not want to disclose financial information to a spouse or former spouse.

35. Higher Education Amendments • Disclosures in Response to Legal Actions • Allows institutions to disclose education records to a court without consent, and without a subpoena or court order, if the student (or parent if the student is a dependent) has initiated legal action against the institution. • Permits institutions to initiate legal actions against a student (or parent if the student is a dependent) to not notify the student or parent prior to disclosing relevant education records.

36. Higher Education Amendments • Campus Disciplinary Issues • Permits colleges to disclose to the victim the final results of a disciplinary hearing regardless of the outcome. • Institutions may disclose to the public the final results of a disciplinary hearing only if it has determined: • The student is an alleged perpetrator of a crime of violence or non-forcible sex offense and • The student has committed a violation of the institution’s rules or policies with respect to the allegation

37. Higher Education Amendments • Campus Disciplinary Issues • The Institution may not name any other students, including the victim or witness, in the proceeding unless the institution has prior consent. • Only cases decided after October 7, 1998 may be disclosed without consent.

38. FERPA Case Law • Falvo v. Owasso Indep. School District 536 U.S. 273 Docket Number: 01-679 decided February 19, 2002 • Gonzaga University etal. V. Doe 536 U.S. 273Docket Number: 01-679 decided June 20, 2002

39. FERPA Case Law • Rumsfeld v. Forum for Academic and Institutional Rights Docket Number: 04-1152 decided March 6, 2006

40. Falvo v. Owasso Indep. School District Kristja J. Falvo asked the Owasso Independent School District to ban peer grading, or the practice of allowing students to score each other's tests, papers, and assignments as the teachers explain the correct answers to the entire class, because it embarrassed her children. When the school district declined, Falvo filed an action against the school district, claming that such peer grading violates FERPA.

41. Falvo v. Owasso Indep. School District Disagreeing with Falvo, the District Court held that grades put on papers by another student are not "education records." In reversing, the Court of Appeals found that grades marked by students on each other's work are "education records," such that the very act of grading is an impermissible release of information to the student grader.

42. Does the practice of peer grading violate the Family Educational Rights and Privacy Act of 1974? No. In a unanimous opinion delivered by Justice Anthony M. Kennedy, the U.S. Supreme Court held that peer grading does not violate FERPA. The Court reasoned that peer-graded items did not constitute education records protected by FERPA until a teacher collected the grades on the students' papers or other items and recorded the grades in the teacher's grade book. In reaching its conclusion, the Court noted that peer-graded items were not “maintained” within the meaning of FERPA, as the student graders only handled the items for a few moments. Moreover, the Court stated that each student grader, by grading assignments, did not constitute a person acting for an educational institution within FERPA.

43. Gonzaga University v. Doe A student at Gonzaga University planned to become a public elementary school teacher in Washington, which required all new teachers to obtain an affidavit of good moral character from their graduating colleges. Gonzaga's teacher certification specialist overheard one student tell another that the student had engaged in sexual misconduct against a female undergraduate, contacted the state agency responsible for teacher certification, and discussed the allegations, identifying the student by name. Ultimately, the student was told that he would not receive his certification affidavit.

44. Gonzaga University etal. V. Doe The student sued Gonzaga in state court. A jury awarded the student compensatory and punitive damages of $1,155,000. Ultimately, the State Supreme Court acknowledged that FERPA does not give rise to a private cause of action, but reasoned that the nondisclosure provision creates a federal right that is enforceable.

45. May a student sue a private university for damages to enforce provisions of FERPA ? No. In a 7-2 opinion delivered by Chief Justice William H. Rehnquist, the U.S. Supreme Court held that such an action is foreclosed because the relevant provisions of FERPA create no personal rights to enforce. The Court reasoned that the creation of individual rights required clear and unambiguous terms, which FERPA's confidentiality provisions did not contain. "FERPA's nondisclosure provisions contain no rights-creating language, they have an aggregate, not individual, focus, and they serve primarily to direct the Secretary of Education's distribution of public funds to educational institutions," wrote Chief Justice Rehnquist. Justice John Paul Stevens, joined by Justice Ruth Bader Ginsburg, dissented, arguing that the Court's opinion "may be read as accepting the proposition that FERPA does indeed create both parental rights of access to student records and student rights of privacy in such records, but that those federal rights are of a lesser value because Congress did not intend them to be enforceable by their owners."

46. Rumsfeld v. Forum for Academic and Institutional Rights The Forum for Academic and Institutional Rights (FAIR), a group of law schools and professors, sued the Secretary of Defense, seeking to prevent the enforcement of the most recent version of Solomon Amendment, a federal law that requires schools receiving federal funding to give access to military representatives for recruiting purposes.

47. Rumsfeld v. Forum for Academic and Institutional Rights The district court denied FAIR’s motion. On appeal, the Third Circuit Court of Appeals reversed, issuing a preliminary injunction against enforcement of the Solomon Amendment. The court held that the law violates the First Amendment by restricting the schools' right of expressive association and by compelling the law schools to assist in the expressive act of recruiting. Even though the law schools have the option of refusing federal funding to further their non-discrimination policies, the court stated that, under the doctrine of unconstitutional conditions, Congress could not require the forfeiture of a constitutional right—especially, the right of free speech—as the basis for receiving federal funds.

48. Are Institutions Required to Provide SRI Data and Assistance to Military Recruiters? Yes. Because Congress could require law schools to provide equal access to military recruiters without violating the schools’ freedoms of speech and association, the Third Circuit erred in holding that the Solomon Amendment likely violates the First Amendment.

49. USA PATRIOT Anti-Terrorism Act Amends FERPA as follows: • Accommodates law enforcement officials investigating terrorism • Allows US Assistant Attorney General or a higher ranking official to obtain court order for release of student records on basis of certification • Institutions “shall not be liable to any person for good faith disclosure of student records”

50. Campus Sex Crimes Prevention Act • Effective October 2002 • Requires sex offenders, when registered with the state, to indicate enrollment, employment or volunteer status at colleges and universities • Effective October 2003 states must share with colleges and colleges must inform students/faculty/staff where information on registered sex offenders can be obtained • Amends FERPA to allow colleges to publish registry information without student consent