Overview
More often than not a discussion of student
records raises legal and policy questions. Ironically, however,
a review of the literature in education law (1975-2000) did not
yield an over abundance of books, scholarly articles, and other
sources specifically treating student records-related issues
facing pubic school officials, teachers, and counselors. The
reason for this is very clear. The passage and implementation of
the federal Family Educational Rights and Privacy Act
of 1974 (FERPA), and subsequent changes in the laws of the
states to comply with FERPA, actually prevented many
potential issues from reaching fruition by giving guidance to
public school policy-makers and practitioners. In other words,
over a twenty-five year period (1975-2000), where school system
policies and procedures complied with federal and state laws,
and practitioners carried out their duties in good faith, legal
issues seemed few in number. (Bosher, Kaminski, and Vacca, 2004)
FERPA (1974) Requirements. A
comprehensive federal statute, the Family Educational Rights
and Privacy Act (which applies to all school system
and individual schools receiving some form of federal financial
assistance and/or funding) contains very specific mandates
regarding student educational records (in some states referred
to as scholastic records, in other states referred
to as a permanent record). Some examples of FERPA
requirements are: parents must be given annual notice of their
rights under FERPA and they cannot be prevented from
seeing, reviewing, and challenging information in their child’s
record; no complete record or any portion of it can be released
to any “unauthorized person” or to any outside agency or person
without parental consent; no personally identifiable information
(i.e., information related directly to a specific
student) can be released without parental consent; persons
(including school staff) wanting to gain access to student
information must establish a “legitimate interest” in the
information; and, students who have reached the age of eighteen
years old and who are currently in attendance at the school may
gain access to their educational record. It must be stressed
that an underlying principle of FERPA is to protect the
confidentiality of all information contained in a student’s
educational record. (McCarthy, Cambron-McCabe, and Thomas, 2004)
On balance, implementation of FERPA
had a positive effect on student record keeping in public school
systems. As one source summarized, “Although the act has imposed
additional administrative responsibilities on schools, it has
generally led to an improvement in the quality and accuracy of
student records.” (Fischer, Schimmel, and Kelly, 1999
Since FERPA contains minimum
requirements, each of the states is permitted to expand and
build on its mandates. In the Commonwealth of Virginia, for
example, the Code of Virginia contains specific
subsections governing the release of information to public and
private schools, colleges and universities, and the military
(Sec. 22.1-288); sharing information with law enforcement
agencies (Sec. 22.1-288.1); and transfer, management, and
disclosure of information in court notices (Sec. 22.1-289).
The Changing Scene
Until recently, keeping student records
secure and protected from unauthorized and unwarranted access
and disclosure has been a fairly simple task. Suffice it to say,
however, things are changing rapidly. Some experts have
described the current scene as “increasingly volatile.” (Cambron-McCabe,
et al, 2004)
Why the Change? Five reasons have
caused changes in student record keeping policy and procedures.
First, the need for school personnel to discover, collect,
store, and use student information (both school related and
family/personal data), in an effort to meet student curricular
needs and to provide related services, has expanded the scope of
student records. Second, the availability of computers and other
forms of technology enables school officials, counselors, and
others to locate, collect, store, and use information from all
aspects of a student’s life (academic and social). Third,
requests for student information now come from a growing number
of sources inside school systems (e.g., counselors,
principals, school social workers, special education personnel,
classroom teachers) and outside school systems (e.g.,
military recruiters, university researchers, law enforcement
officers, the courts, college admissions personnel, guardians ad
litem, the media, social services agencies). Fourth, the broad
based data collection and confidentiality requirements of such
federal statutes as the Individuals with Educational
Disabilities Act (IDEA) and No Child Left Behind (NCLB).
Fifth, an increased need to identify, collect, use, and share
information between school systems and police agencies in a
coordinated effort to prevent the reoccurrence of such horrific
events as the student shooting spree at Columbine High School.
Privacy v The Right to Know. More
often than not at the heart of student records-related
issues is an existing tension between the privacy
expectations of students and their families (i.e., to
be “let alone,” free from unauthorized and unwarranted intrusion
and publicity), and the prerogatives of public school officials
and professional personnel to be informed (i.e., the
right to know). As one author has summarized, privacy is a
personal right, neither easily defined nor explained. It
encompasses the intimate details of a person’s personal life.
Thus, the right to privacy “often clashes with other rights and
responsibilities that we as a society deem important.” (Alderman
and Kennedy, 1995)
Emerging Issues
In recent
years, events such as the shootings at Columbine High School,
the terrorist attacks at the World Trade Towers and the
Pentagon, and passage of the U.S.A. Patriot Act of 2001 (which,
for example, creates the possibility obtaining a subpoena to
gain access to student confidential information without a
student and/or parent knowing it), have raised numerous issues
regarding the privacy of this nation’s citizens, including
public school students. Eight examples of emerging student
records issue producers are:
· Identifying
and gathering information (especially involving the methods and
mechanisms for gathering data).
·
Determining (a) what is or is not the educational
record (For example, in Virginia the official (scholastic)
record contains all information maintained by a school that is
directly related to a student. However, a student’s “record does
not include records of instructional, supervisory,
administrative, and ancillary educational personnel kept in the
sole possession of the maker of the record and are not
accessible to any other person except a temporary substitute for
the maker of the record” [Code of Virginia, Sec.
22.1-289]), and (b) the official location of that record.
·
Separating personally identifiable information
from directory information (e.g., student’s name,
sex, address, telephone listing, date and place of birth, dates
of attendance, participation in school activities) contained in
the record.
·
Examining the contents and accuracy of all
information included in the educational record (involving
methods of challenging, correcting, purging, and expunging
information).
·
Storing information (where, how, electronic v
paper), including identifying the official custodian of the
information.
·
Access to information (by whom, when, how, where).
·
Uses of information (by whom, when, for what
purpose).
·
Determining a reasonable time limitation
(specified in years) on maintaining the record. (Bosher,
Kaminski, and Vacca, 2004)
Each of the above issues can be further
subdivided into specific sub-issues each of which has a profound
impact on educational policy. For example:
·
Who is or is not a “party in interest,” or a
“school official,” or someone “having a legitimate educational
interest in the student,” or other “authorized person,” having
access to a student’s educational record? How and to whom is
this established?
·
Is parental consent always necessary as a
precondition of releasing any information (both directory and
personally identifiable) from a child’s educational record? What
form must this consent take (oral, written)?
·
What about the rights of students who have reached
the age of eighteen? What about students who may not have
reached the age of eighteen but are legally emancipated from
their parents? What about the rights of non-custodial parents,
or guardians ad litem, or court appointed special advocates? How
is their identity established? What official correspondence and
documentation is needed?
·
When is it appropriate to transfer, or otherwise
share and discuss personally identifiable information
about a student with other professional staff in a school
setting, or with professional staff of other schools, or with
outside agencies such as child protective services, juvenile
justice personnel, family welfare, the courts, the police? Are
there federal (other than FERPA) and state statutory
provisions and requirements (see, for example, the Code of
Virginia 22.1-287, et seq.) involved?
·
Should all information on a student (e.g.,
scholastic, disciplinary, health-related) be kept in the same
record or should information be kept separately? Who is the
official custodian of these records?
Case Law
Existing case law regarding student records
is sparse and the case law that does exist leaves many questions
unanswered. However, what follow are some examples of court
decisions that offer advice to policy makers.
While a New York court in Blair v Union
Free School District (1971) stressed that the confidential
relationship between students and school personnel must be
protected against intentional or negligent divulgence of
information to “unauthorized third parties,” and a Pennsylvania
court in Merriken v Cressman (1973) made it clear that a
balance must be struck between a person’s right to privacy and
the right of government to “invade that privacy for the sake of
the public’s interest,” a California court in Tarasoff v
Regents (1976) established that the duty of
confidentiality gives way to the duty to warn. In Tarasoff
the issue revolved around a psychiatrist’s duty to disclose
information shared in a confidential therapy session with a
student. The information shared by the student involved a threat
of suicide and impending danger to another student.
In Belanger v Nashua (1994), a
federal district court in New Hampshire held that a student’s
school record includes all information found in a student file
maintained by school officials, including information generated
by a juvenile court but housed in the student’s school file.
Similarly, the United States Court of Appeals for the Sixth
Circuit held that student disciplinary records (including names
and other personally identifiable information) contained as a
part of a student’s educational record are not subject to public
release. U.S. v Miami University (2002)
The United States Supreme Court decided two
FERPA cases during the 2002 term. Owasso I.S.D. v
Falvo (2002) involved a teacher’s practice of allowing
students to exchange and grade each other’s homework papers,
quizzes, and examinations in class. Student names were not
hidden from the student grader. The high court did not consider
this practice as violating FERPA. In the second case,
Gonzaga University v Doe (2002), the Supreme Court
emphatically stated that private citizens do not have a right to
sue under FERPA. The authority to enforce the
requirements of FERPA vests with the United States
Secretary of Education.
Florida Department of Education v Cooper
(2004) involved a suit filed by the legal guardian of a
student s who had failed the Florida Comprehensive Achievement
Test (FCAT). The guardian sought access to the test itself. The
appellate court held that a state department of education
interpretation of the law (i.e., that to protect test
security the law only allowed for access to test scores and not
to the test instrument itself) was a reasonable one.
Policy Implications
As the 2004 school year comes to a close it
is a good time to revisit student records-related issues and to
consider possible revisions in school system policy and
procedures to prevent future problems. As a part of the review
process (i.e., policy audit) school officials should
review policies and procedures that proved successful in
handling potential issues before they got out of hand. What
follow are some suggested questions to ask as the policy audit
process moves forward:
·
Is your student records policy in conformance with
FERPA and the laws of your state (e.g., the
definitions of educational record, directory information,
parental rights, rights of students who have reached the age of
eighteen)?
·
Does the policy reflect a respect for student and
family privacy and ensure confidentiality?
·
Is the policy written in clear, non-legal,
non-educational jargon language?
·
Does the policy clearly differentiate between
directory information and personally identifiable
information?
·
Does the policy require a separation between
information kept in a student’s official educational record and
information that is more appropriately kept in another secure
place (e.g., medical information)? Here a note of caution
is in order. Be careful not to create a student data storage
system that is so fragmented that it actually violates FERPA
access requirements.
·
What does the policy say about student
disciplinary information?
·
Does the policy clearly state that access to
student information is only granted to parents, guardians,
students who have reached the age of eighteen, persons acting
for the school system, and others who can demonstrate a
“legitimate educational interest” in the student?
·
What does the policy say about the rights of
non-custodial parents?
·
Does the policy state anything about time, place,
and manner (including the presence of a qualified school person
to help interpret the information contained in the record) of
access to student records?
·
Does the policy say anything about correcting
information contained in the record, including expungement of
the record?
·
What does the policy say about copying information
from the record (including the cost and who is financially
responsible for copying costs)?
·
Does the policy cover the transfer of records?
Resources Cited
Alderman, Ellen and Caroline Kennedy, THE
RIGHT TO PRIVACY (Knopf, 1995)
Belanger v Nashua, 856 F. Supp. 40 (D.N.H. 1994)
Blair v Union Free School District, 324 N.Y.S.2d 322 (N.Y. 1971)
Bosher, William C., Jr, Kate Kaminski, and Richard S. Vacca, THE
SCHOOL LAW HANDBOOK (ASCD, 2004)
Cambron-McCabe, Nelda H., Martha McCarthy, and Stephen Thomas,
PUBLIC SCHOOL LAW: TEACHERS’ AND STUDENTS’ RIGHTS, Fifth Edition
(Pearson, 2004)
Code of Virginia, 2003 Cumulative Supplement, 22.1-287,
22.1-288, 22.1-288.1, and 22.1-289
Family Educational Rights and Privacy Act of 1974, 20 U.S.C.
1282g
Florida Department of Education v Cooper, 858 So.2d 384 (Fla.
App. 2003)
Fischer, Louis, David Schimmel, and Cynthia Kelly, TEACHERS AND
THE LAW, Fifth Edition (Longman, 1999)
Gonzaga University v Doe, 122 S.Ct. 2268 (2002)
Individuals With Disabilities Education Act, 20 U.S.C. 1400, et
seq. (2003)
Merriken v Cressman, 364 F. Supp. 913 (E.D. Pa. 1973)
No Child Left Behind Act, 20 U.S.C. 6301, et seq. (2003)
Owasso I.S.D. v Falvo, 122 S.Ct. 934 (2002)
Tarasoff v Regents, 551 P.2d 334 (Cal. 1976)
United States v Miami University, 294 F.3d 797 (6th
Cir. 2002)
Richard S. Vacca
Senior Fellow CEPI
Note: The views expressed in this
commentary are those of the author. |
