What is FERPA? Part I

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.

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. 

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...

*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.