FERPA is a law that has been discussed a lot recently in and around the
Escambia County School District. It has been tossed around a lot lately. Some
people do not understand this law, what it means, and what it does and does not
do. Some people throw out opinions that are incorrect, and expect us all to just swallow these flawed opinions as if they are somehow sacrosanct.
But I don't agree, and I won't be like a monk from a Gahan Wilson cartoon.
Because of all of this, I’ve done a bit of research myself recently, read about 50 FERPA related cases, large portions of two books, and lots of scholarly articles on this subject. I’ve also spoken to a total of five lawyers (four of whom I agree with) on this subject and I’m going to be posting some of what I have learned about this law on this site in a multi-part series over the next few days. I’m also going to be talking about FERPA at our next school board workshop.
But I don't agree, and I won't be like a monk from a Gahan Wilson cartoon.
Because of all of this, I’ve done a bit of research myself recently, read about 50 FERPA related cases, large portions of two books, and lots of scholarly articles on this subject. I’ve also spoken to a total of five lawyers (four of whom I agree with) on this subject and I’m going to be posting some of what I have learned about this law on this site in a multi-part series over the next few days. I’m also going to be talking about FERPA at our next school board workshop.
FERPA was a law that did not go through the traditional
rulemaking process in congress; it was an amendment offered on the floor from
Senator James Buckley in December of 1974.
The rationale for the law was to address the need to curtail the
widespread practice at that time of publicly funded schools’ disseminating
student records and other information to unaffiliated persons outside of the
schools.
Additionally, the law was needed to compel schools to allow
parents to view educational records, and to challenge the accuracy of such
records. The law also allowed for
penalties to be assessed against publicly funded entities that failed to comply
with the law, and this “Buckley Amendment” also outlined a mechanism for the
filing of complaints against entities that violated the law. The Connecticut Parent Advocacy Center has a well-written
one-page primer on FERPA,
here.
So how does this law apply to individual school board members?
I guess that depends upon whom one asks. So I’ve asked a lot of people.
Here is my
opinion based upon my research*
I started by contacting the Family Policy Compliance Office(FPCO)—the office in the Department of Education, Office of Civil Rights, that
receives, reviews, and investigates alleged complaints related to FERPA.
Their website lists many opinion letters that they have
published—I've read a lot of them--although it is not a complete list.
For some specific opinion letters one might need, third party entities must be
contacted in order to easily retrieve such opinions.
I’ve requested and received several of these opinions, and
they have made for interesting, enlightening reading.
The initial and largest take away I have about FERPA, after thoroughly looking into this law from many different angles, is that
enforcement provisions concentrate on correcting behaviors rather than
harshly penalizing institutions for single event infractions. FERPA a law that is considered by some scholars as “essentially toothless.” This is because hundreds of complaints have been
filed against
hundreds of schools since 1974--- yet not one publicly funded school or district has ever been hit with an economic sanction (penalty) by the Secretary of Education stemming from a FERPA violation. Not one, ever, in the 41 year history of FERPA. None. I confirmed this very recently via correspondence with an official from the FPCO.
hundreds of schools since 1974--- yet not one publicly funded school or district has ever been hit with an economic sanction (penalty) by the Secretary of Education stemming from a FERPA violation. Not one, ever, in the 41 year history of FERPA. None. I confirmed this very recently via correspondence with an official from the FPCO.
FERPA was enacted to curtail repeated, multi-episode
systematic disclosures of personal information by authorized representatives of
educational agencies acting on behalf of such agencies, not one-time or
inadvertent disclosures. FERPA broadly defines "education records" as
"those records, files, documents, and other materials which (i) contain
information directly related to a student; and (ii) are maintained by an
educational agency or institution or by a person acting for such agency or institution."
(Jensen Ex rel. CJ v. Reeves, 45 F.Supp. 2d 1265 - Dist. Court, D. Utah 1999,
Smith v. Duquesne University,612 F. Supp. 72 - Dist. Court, WD Pennsylvania 1985 Udine ELLIS, Guardian for LateashaPendergrass Plaintiff v. CLEVELAND MUNICIPAL SCHOOL DISTRICT Defendant. No.1:03-CV-1284. United States District Court, N.D. Ohio, Eastern Division. March10, 2004)
The second and huge takeaway: FERPA creates no private right of action for a plaintiff against an agency. So if a parent or student feels an agency or
official within an agency has violated FERPA—such a person cannot successfully
sue the entity under FERPA individually. “if
Congress wishes to create new rights enforceable under § 1983, it must do so in
clear and unambiguous terms—no less and no more than what is required for
Congress to create new rights enforceable under an implied private right of
action. 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. They therefore create no rights enforceable under § 1983.
Accordingly, the judgment of the 291*291 Supreme Court of Washington is
reversed “(Gonzaga Univ. v. Doe, 536US 273 - Supreme Court 2002)
The third huge takeaway I have on FERPA is that schools will only absorb sustained complaints from FPCO if the violations are
committed under an official policy or procedure of such an institution, or if
repeated violations occur by the agency or it’s employee’s or someone acting on
behalf of such an institution. “The
language of the statute appears to limit its prohibition to those situations
where an educational agency "has a policy or practice of permitting the
release of education records." See § 1232(g)(b)(1) and (2). The Act does
not contemplate the dissemination of information to parents complaining of a
particular student. FERPA was adopted to address systematic, not individual,
violations of students' privacy by unauthorized releases of sensitive
information in their educational records.” (Jensen v. Reeves, United States District Court, D. Utah, CentralDivision, Maynard v. GREATER HOYT SCHOOL DIST. NO. 61-4, 876 F. Supp. 1104 -Dist. Court, D. South Dakota 1995)
Finally, and most importantly, FERPA neither applies to nor
protects sensitive student information that is known by personal observation,
hearsay or “derived from a source
independent of school records... Although some of the information in Exhibit
"B" would fall within the scope of the Buckley amendment [FERPA] if
the source of that information had been school records, the prohibitions of the amendment cannot be deemed to extend to
information which is derived from a source independent of school records
(emphasis added). Even though a school suspension is listed in protected
records, as in the present case, the suspension would also be known by members
of the school community through conversation and personal contact. Congress could not have constitutionally
prohibited comment on, or discussion of, facts about a student which were
learned independently of his school records (emphasis added).” (Frasca v. Andrews, 463 F. Supp. 1043 -Dist. Court, ED New York 1979,) See also-- Letterto Ramirez [FPCO letter from 10-2-2012], Letter to Anonymous [FPCO letter 2007] Sharing Information:AGuide to the Family Educational Rights and Privacy Act andParticipation in Juvenile Justice Programs ProgramReport June 1997)
So, with this as the backdrop, how could a school board
member that is not an employee of an agency and has no access to student
records (except in some very limited circumstances and only at certain limited times), and is not a custodian of
student records, individually, ever even be accused of violating FERPA?
I’d answer that question by saying it would be very difficult
to do so, even if a board member individually wanted to release information taken
from a student’s record directly.
Why?
First off, a board member would have to have access to such
records. Board members do not have independent access to student records as a general rule.
Secondly- for a violation to occur under this law, the
violation has to be based upon an “official policy of releasing
information.” Well, no school district I
know of has an official policy allowing school board members to disseminate
classified student data.
Third, for a violation to occur, it must be committed by an
employee of the school or someone acting on behalf of the school. Individual board members have no individual
powers and certainly do not act on behalf of the school board or the schools in
their individual school board member capacity.
So, with all of this said, It appears to me as though it
would be very difficult to ever envision a situation where a board member
individually could be found guilty of “Violating FERPA” by publicly discussing information that is not taken
directly from official student records.
A disgruntled, uninformed person might believe that a board member individually could be guilty of violating FERPA for speaking out about student issues of which he/she is aware from constituent contact and conversations--- but how any attorney could believe this confounds me...
A disgruntled, uninformed person might believe that a board member individually could be guilty of violating FERPA for speaking out about student issues of which he/she is aware from constituent contact and conversations--- but how any attorney could believe this confounds me...
*The content of this
post is my opinion and my opinion only-- based upon what I have read and
learned about FERPA over the last two months of intensive research. I am not an attorney, I did not play one on
TV, and I did not sleep at a Holiday Inn
Express last night either—but I can read and I do have an opinion on this
subject. But this is one man’s opinion
only.
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