FERPA

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FERPA is a federal law that applies to educational agencies and institutions that receive federal funds under any program administered by the Secretary of Education. Generally, FERPA prohibits the funding of an educational agency or institution that has a policy or practice of disclosing a student's "education record" without the consent of the parent or eligible student. The FERPA statute is found in 20 U.S.C. § 1232g and the regulations (not yet amended to reflect the most recent legislative changes) are found in 34 CFR Part 99.

FERPA defines education records as those records that contain information directly related to a student that are maintained by an education agency, institution or a person acting for the agency or institution. FERPA Education records do not include records of students who are 18 years or older, or are attending post-secondary educational institutions, that are:

• made or maintained by a physician, psychiatrist, psychologist, or recognized professional or paraprofessional acting or assisting in that capacity,
• made, maintained, or used only in connection with the provision of treatment to the student, and
• not available to anyone, except a physician or appropriate professional reviewing the record as designated by the student.

• FERPA Website
• FERPA General Guidance for Parents
• FERPA General Guidance for Students
• Regulations FAQ [HTML]  or PDF (129KB)
• Family Policy Compliance Office (FPCO)
• FERPA Online Library
• FERPA Case Law [HTML]  or  MS Word | PDF

FERPA & HIPAA?

In general, HIIPAA and FERPA do not intersect. While HIPAA safeguards “protected health information,” the Family Educational Rights and Privacy Act (FERPA) protects “education records” maintained in a central records repository.  This can means a central records room, a computer server, or at the school district headquarters.

 In developing the HIPAA regulations, the U.S. Department of Health and Human Services specifically exempted from its definition of “protected health information” FERPA’s education records.

HOWEVER:  Educational institutions that provide health care services to individuals other than students or that provide health care coverage to their employees need to be familiar with and may be subject to HIPAA. Educational institutions that do not receive federal funds that maintain any student medical records may also be subject to HIPAA requirements.

Additionally, there are many who now believe that ANY records maintained by a school nurse, or other entity that resides within the school facility could be subject to HIPAA - assuming they engaged in the electronic transactions.

FERPA & GLBA

As FERPA covers Educational Records, GLBA covers Consumer Financial Information.

There are some regulatory scholars who now believe that GLBA in fact covers information held or processed by schools both public and private (especially Private Schools).  In the Public School context, there are many activities that schools engage in that can be consider "Financial Activities" as defined under GLBA.  These include: Fund Raising, monies held in trust, grant and scholarship application processes, and more.  Additionally, many schools maintain extensive records about parents and families for supplemental assistance eligibility evaluation - such information, coupled with the delivery of financial assistance may be subject to the privacy and safeguard requirements of GLBA.

FERPA UPDATES

U.S. Supreme Court Ruling

On February 19, 2002, the U.S. Supreme Court ruled in Owasso ISD v. Falvo that peer grading does not violate FERPA. The Department is currently reviewing the Court's ruling and may issue additional guidance or regulations to further clarify the scope of the term "education records."

U. S. Supreme Court Ruling

On June 20, 2002, the U.S. Supreme Court ruled in Gonzaga University v. John Doe. In the Gonzaga case, a student brought litigation against the University for disclosing personally identifiable information, without his consent, in violation of FERPA. The Supreme Court ruled that students and parents may not sue for damages under 42 U.S.C. § 1983 to enforce provisions of the Family Educational Rights and Privacy Act (FERPA).

U.S. Court of Appeals for the Sixth Circuit

On June 27, 2002, the 6th Circuit Court of Appeals unanimously affirmed a lower court's ruling that university disciplinary records are "education records" under FERPA and that disclosing such records without students' consent constitutes a violation of FERPA. In 1998, the Department asked a federal district court in Ohio to enjoin Miami University and the Ohio State University from disclosing records containing the names of student victims and accused students as prohibited under FERPA. On March 20, 2000, the U.S. District Court for the Southern District of Ohio permanently enjoined the two Ohio universities from disclosing their on-campus disciplinary records to the public under the State's open records law.

In affirming the ruling, the circuit court concluded that continued release of student disciplinary records "will irreparably harm the United States" and the Department. This is important for three reasons: 1) the court agreed with the lower court that the Student Right-to-Know and Campus Security Act provides parents and students with statistical information about the type and amount of crimes on campus; 2) the court reaffirmed the Department's broad reading of the term "education records" and stated that Congress, in amending FERPA in 1998 to allow postsecondary institutions to disclose the final results of disciplinary proceedings, must have intended that disciplinary records be education records or this amendment would be "superfluous"; and 3) the court held that the Department was within its right in seeking an injunctive relief in this case because none of the administrative remedies authorized by FERPA would have stopped the violations. In effect, the court held that the Department can take preemptive actions in enforcing FERPA, rather than only after violations occur.

No Child Left Behind Act of 2001

• Sec. 4155 Transfer of School Disciplinary Records.
  
  FERPA currently permits schools to transfer any and all education records, including disciplinary records, on a student who is transferring to another school. See § 99.31(a)(2) and § 99.34 of the FERPA regulations. This new provision requires States that receive funds under the Elementary and Secondary Education Act (ESEA), within two (2) years, to provide an assurance to the Secretary that the State "has a procedure in place to facilitate the transfer of disciplinary records, with respect to a suspension or expulsion, by local educational agencies to any private or public elementary school or secondary school for any student who is enrolled or seeks, intends, or is instructed to enroll, on a full- or part-time basis, in the school." 
   
• Sec. 9528 Armed Forces Recruiter Access to Students and Student Recruiting Information.

  FERPA currently allows schools to designate and disclose without consent certain items of information as "directory information." The FERPA regulations define "directory information" under § 99.3 of the regulations and set forth the requirements for implementing a "directory information" policy under § 99.37 of FERPA. Generally, "directory information" may be disclosed by a school to any party, provided the requirements of FERPA are followed.

  Congress passed a provision in the No Child Left Behind Act that addresses the disclosure of directory-type information (students' names, addresses, and telephone listings) to military recruiters. Congress also included similar language in the National Defense Authorization Act for Fiscal Year 2002. Both laws, with some exceptions, require schools to provide directory-type information to military recruiters who request it. Typically, recruiters are requesting names, addresses, and telephone listings on junior and senior high school students that will be used for recruiting purposes and college scholarships offered by the military.

  The Department of Education, in consultation with the Department of Defense, has developed guidance on the provisions contained in these two laws. The guidance has been posted on the Department of Education Web site: http://www.ed.gov/offices/OM/fpco/hottopics/ht10-09-02.html.
   

 

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