Proposed Family Education Rights and Privacy Act regulations

The Department of Education (ED) has issued proposed regulations addressing a range of issues under the Family Education Rights and Privacy Act (FERPA), the primary federal law governing privacy of student records in schools that receive federal funds. In the wake of the April 2007 shootings at Virginia Tech, concerns arose, discussed at the second link below, about real or perceived privacy law obstacles to the sharing of student information of potential import for safety considerations. The proposed regulations would re-emphasize existing exceptions where safety is at stake but also would remove language that currently requires that these exceptions be construed narrowly. Instead, new language would provide that a school may “take into account the totality of the circumstances” and establish a “safe harbor” whereby if the school “determines that there is an articulable and significant threat to the health and safety of a student or [others], it may disclose information from education records to any person whose knowledge is necessary” to protect these individuals, and, “[i]f, based on the information available at the time of the determination, there is a rational basis for the determination, [ED] will not substitute its judgment for that of the [school].

Among other things, the regulations also would (1) codify the rulings by the U.S. Supreme Court in Owasso Indep. Sch. Dist. No. I-011 v. Falvo, 534 U.S. 426 (2002) and Gonzaga Univ. v. Doe, 536 U.S. 273 (2002); (2) implement statutory changes to FERPA made under the USA PATRIOT and Campus Sex Crimes Prevention Acts; (3) update the regulations to address distance learning; (4) restrict disclosure of student social security numbers; (5) clarify requirements as to alumni records; (6) clarify that school districts need not interpret restrictions on disclosures to contractors, organizations conducting studies for the district, or auditors as strictly as some have; (7) provide additional guidance as to when school officials have a “legitimate educational interest” in access to student records such that consent for access to the records is not required; and (8) provide guidance on de-identification, or redaction of private information from records so that they may be disclosed. Comments are due May 8, 2008. The rules, reactions to the proposals, and their implications for the K-12 and higher education worlds, respectively, are discussed in the reports below by Education Week and the New York Times.

73 Fed. Reg. 15573 (Mar. 24, 2008)
ED proposed regulations
NSBA School Law pages on FERPA and Virginia Tech shootings
Education Week, 3/1/08, By Alyson Klein
New York Times, 3/25/08, By Tamar Lewin