FERPA – The Family Educational and Privacy Rights Act of 1974

Part 6 of the series Back to Basics

This is our sixth installment of our “Back to the Basics” commentaries. This commentary addresses a familiar but commonly misunderstood federal law, the Family Educational and Privacy Rights Act of 1974, 20 U.S.C. § 1232g (“FERPA”).

Just a few weeks ago, one of the largest student information system vendors in the nation – PowerSchool – informed districts in Alaska and across the country that it (PowerSchool) was the target of a cyber-attack.  The hackers likely obtained student records including, in some cases, student personal information such as social security numbers. PowerSchool believes the hacked information has been deleted, but this incident underscores that an understanding of FERPA continues to be essential.

History & Enforcement of FERPA

FERPA was signed into law in 1974 by President Gerald Ford. Its sponsor, Senator James Buckley of New York (thus FERPA is sometimes referred to as the Buckley Amendments), explained that FERPA was adopted in response to “the growing evidence of the abuse of student records across the nation.”

FERPA has been amended eleven times since it was enacted in 1974. The U.S. Department of Education is responsible for enforcing FERPA through its Student Privacy Office (SPPO). It has adopted regulations implementing FERPA several times. FERPA Regulations are found at 34 C.F.R. Part 99.

Basics of FEPRA Protections

FERPA protects the privacy interests and confidentiality of student educational records. FERPA applies to any public or private elementary, secondary, or post-secondary school and any state or local education agency that receives federal funds from the U.S. Department of Education. Thus, it applies to all school districts in Alaska.

FERPA provides parents the right to access their children’s education records, the right to seek to have the records amended, and the right to a degree of control and notification regarding the disclosure of personally identifiable information (“PII”) from the records. All FERPA rights transfer from parents and guardians to the student when the student reaches 18 years of age.

PII includes, but is not limited to, the student’s name – it includes other information that alone or in combination, is linked or linkable to a specific student that would allow a reasonable person in the school community, who does not have personal knowledge of the relevant circumstances, to identify the student with reasonable certainty. 34 CFR § 99.3.

School districts may not disclose PII from student educational records unless the parent (or student) consents to the disclosure or an exception applies. School districts which fail to comply with the requirements of FERPA may become ineligible for federal funding. 20 U.S.C. 1232g(b)(1).

The exceptions which permit disclosure include:

• Disclosure to other school officials, including teachers, determined to have legitimate educational interests;
• Disclosure to the juvenile justice system in order to effectively serve the student whose records are released;
• Disclosure to comply with lawfully issued subpoena or court order;
• Disclosure if knowledge of the information is necessary to protect the health or safety of the student or other individuals in an emergency; and
• Disclosure of “directory information.” Directory information means information contained in an education record that would not be considered harmful or an invasion of privacy such as student name, school(s) attended, awards and honors, mailing address, grade level, and dates of attendance/graduation. A district designates what information is directory. This means that not all districts are the same with regard to directory information.

FERPA-related School District Policies

Most school districts have adopted school board policies, administrative regulations, and procedures to implement and ensure the protections of FERPA. Generally, those policies require superintendents to develop and maintain regulations which ensure the district maintains accurate, comprehensive, and confidential student records. Most districts have established administrative regulations which comply with the requirements of FERPA. If your district uses the AASB policy numbering system, you can find the FERPA related policies/regulations usually at BP 5125.

Practice Pointers for School Districts

We offer the following “practice pointers” to connect our commentaries with practical suggestions for school board members and administrators:

• Review your district’s board policies and administrative regulations that ensure the confidentiality of student educational records? Get to know how FERPA works in your district!
• Does your district have reasonable measures in place to protect the confidentiality of student educational records?
• Get to know FERPA! How has your district defined directory information?

---

More from Sedor, Wendlandt, Evans & Filippi, LLC:

• Ten-part series: The Last Frontier Facing the New Frontier
• Ten-part series: Fine Tuning
• Nine-part series: A Free AND Ordered Space
• Nine-part series: Ripp’d from the Headlines
• Seven-part series: Technology and the law
• Eight-part series: Interacting with the world outside of the school
• Five-part series: Union Issues in Schools
• Four-part series: Freedom of Expression in Schools