Adult Education Administrator's Manual

Policy
Federal Laws

Family Educational Rights and Privacy Act (FERPA) [cont'd]

*Cornell Law Website- Title 20, Chapter 31, Subchapter III, Part 4, Sec. 1232g. - Family educational and privacy rights (FERPA)

*US Department of Education Website - Family Educational Rights and Privacy Act (FERPA)

Who is Behind the Family Educational Rights and Privacy Act?

The United States Congress is a body of elected officials from each state across the nation that consists of two chambers: the United States Senate and the United States House of Representatives. Two United States Senators represent each state on the federal level and the number of the U.S. House of Representatives for each state, varies according to the population in each state. Since 1934, the legislative sessions of Congress convene on January 3 of odd-numbered years and adjourn on January 3 of the following odd-numbered year. Names of congressional members from Texas may be found at: http://www.capitol.state.tx.us/

The U.S. House Committee on Education and the Workforce is the federal House of Representatives’ committee that created the FERPA and will be responsible for amending the act. There are 49 members on this committee.

On the senate side, the federal senate committee in charge of education policy and FERPA is the U.S. Senate Committee on Health, Education, Labor, and Pensions.

Family Policy Compliance Office

The Family Educational Rights and Privacy Act (FERPA) (20 U.S.C. § 1232g; 34 CFR Part 99) is a Federal law that protects the privacy of student education records. The law applies to all schools that receive funds under an applicable program of the U.S. Department of Education.

FERPA gives parents certain rights with respect to their children's education records. These rights transfer to the student when he or she reaches the age of 18 or attends a school beyond the high school level. Students to whom the rights have transferred are "eligible students."

• Parents or eligible students have the right to inspect and review the student's education records maintained by the school. Schools are not required to provide copies of records unless, for reasons such as great distance, it is impossible for parents or eligible students to review the records. Schools may charge a fee for copies.
• Parents or eligible students have the right to request that a school correct records which they believe to be inaccurate or misleading. If the school decides not to amend the record, the parent or eligible student then has the right to a formal hearing. After the hearing, if the school still decides not to amend the record, the parent or eligible student has the right to place a statement with the record setting forth his or her view about the contested information.
• Generally, schools must have written permission from the parent or eligible student in order to release any information from a student's education record. However, FERPA allows schools to disclose those records, without consent, to the following parties or under the following conditions (34 CFR § 99.31)
  • School officials with legitimate educational interest;
  • Other schools to which a student is transferring;
  • Specified officials for audit or evaluation purposes;
  • Appropriate parties in connection with financial aid to a student;
  • Organizations conducting certain studies for or on behalf of the school;
  • Accrediting organizations;
  • To comply with a judicial order or lawfully issued subpoena;
  • Appropriate officials in cases of health and safety emergencies; and
  • State and local authorities, within a juvenile justice system, pursuant to specific State law.

Schools may disclose, without consent, "directory" information such as a student's name, address, telephone number, date and place of birth, honors and awards, and dates of attendance. However, schools must tell parents and eligible students about directory information and allow parents and eligible students a reasonable amount of time to request that the school not disclose directory information about them. Schools must notify parents and eligible students annually of their rights under FERPA. The actual means of notification (special letter, inclusion in a PTA bulletin, student handbook, or newspaper article) is left to the discretion of each school.

For additional information or technical assistance, you may call (202) 260-3887 (voice). Individuals who use TDD may call the Federal Information Relay Service at 1-800-877-8339. Or you may contact us at the following address:

Family Policy Compliance Office
U.S. Department of Education
400 Maryland Avenue, SW
Washington, D.C. 20202-5901

The Basic Rules of FERPA

• Student educational records are considered confidential and may not be released without the written consent of the student.
• As a faculty or staff member you have a responsibility to protect educational records in your possession.
• Some information is considered public (sometimes called “Directory Information”). This information can be released without the student’s written permission. However, the student may opt to consider this information confidential as well. Directory Information is: name, address, phone, dates of attendance, degrees received, major program, height weight of athletes, email address, full or part time status, and date of birth.
• You have access to information only for legitimate use in completion of your responsibilities as a university employee. Need to know is the basic principle.

If you are ever in doubt, do not release information until you contact the Office of Registrar at your university or college or at the Administration office in your adult education cooperative or Even-Start Family Literacy Center.

FERPA General Guidance for Students

FERPA is a Federal law that applies to educational agencies and institutions that receive funding under a program administered by the U. S. Department of Education. The statute is found at 20 U.S.C. § 1232g [Title 20, Chapter 31, Subchapter III, Part 4, Sec. 1232g. - Family educational and privacy rights] and the Department's regulations are found at 34 CFR Part 99. [Title 34--Education, PART 99--Family Educational Rights and Privacy]

Under FERPA, schools must generally afford students who are 18 years or over, or attending a postsecondary institution:

• access to their education records
• an opportunity to seek to have the records amended
• some control over the disclosure of information from the records.

Specific rights of adult students

• the right to see the information that the institution is keeping on the student
• the right to seek amendment to those records and in certain cases append a statement to the record
• the right to consent to disclosure of his/her records
• the right to file a complaint with the FERPA Office in Washington

Special “Don’ts” for Faculty

• To avoid violations of FERPA rules, DO NOT:
• at any time use the entire Social Security Number of a student in a public posting of grades
• ever link the name of a student with that student’s social security number in any public manner
• leave graded tests in a stack for students to pick up by sorting through the papers of all students
• circulate a printed class list with student name and social security number or grades as an attendance roster
• discuss the progress of any student with anyone other than the student (including parents) without the consent of the student
• provide anyone with lists of students enrolled in your classes for any commercial purpose
• provide anyone with student schedules or assist anyone other than university employees in finding a student on campus

Student Educational Records

A student educational record is just about any information provided by a student to the university for use in the educational process is considered a student educational record: personal information; enrollment records; grades; and schedules.

The storage media in which you find this information does not matter. Student educational records may be a document in the registrar’s office; a computer printout in your office; a class list on your desktop; a computer display screen; or notes you have taken during an advisement session.

Access to Education Records

Schools are required by FERPA to:

• provide a student with an opportunity to inspect and review his or her education records within 45 days of the receipt of a request
• provide a student with copies of education records or otherwise make the records available to the student if the student, for instance, lives outside of commuting distance of the school
• provide the names and other personally identifiable information about other students that may be included in the student's education records.

Schools are NOT required by FERPA to:

• Create or maintain education records;
• Provide students with calendars, notices, or other information which does not generally contain information directly related to the student;
• Respond to questions about the student.

Amendment of Education Records

Under FERPA, a school must:

• Consider a request from a student to amend inaccurate or misleading information in the student's education records;
• Offer the student a hearing on the matter if it decides not to amend the records in accordance with the request;
• Offer the student a right to place a statement to be kept and disclosed with the record if as a result of the hearing the school still decides not to amend the record.

A school is not required to consider requests for amendment under FERPA that:

• Seek to change a grade or disciplinary decision;
• Seek to change the opinions or reflections of a school official or other person reflected in an education record.

Disclosure of Education Records

A school must:

• Have a student's consent prior to the disclosure of education records;
• Ensure that the consent is signed and dated and states the purpose of the disclosure.

A school MAY disclose education records without consent when:

• The disclosure is to school officials who have been determined to have legitimate educational interests as set forth in the institution's annual notification of rights to students;
• The student is seeking or intending to enroll in another school;
• The disclosure is to state or local educational authorities auditing or enforcing Federal or State supported education programs or enforcing Federal laws which relate to those programs;
• The disclosure is to the parents of a student who is a dependent for income tax purposes;
• The disclosure is in connection with determining eligibility, amounts, and terms for financial aid or enforcing the terms and conditions of financial aid;
• The disclosure is pursuant to a lawfully issued court order or subpoena; or
• The information disclosed has been appropriately designated as directory information by the school.

Annual Notification

A school must annually notify students in attendance that they may:

• Inspect and review their education records;
• Seek amendment of inaccurate or misleading information in their education records;
• Consent to most disclosures of personally identifiable information from education records.

The annual notice must also include:

• Information for a student to file a complaint of an alleged violation with the Family Policy Compliance Office (FPCO);
• A description of who is considered to be a school official and what is considered to be a legitimate educational interest so that information may be shared with that individual; and
• Information about who to contact to seek access or amendment of education records.

Means of notification:

• Can include student newspaper; calendar; student programs guide; rules handbook, or other means reasonable likely to inform students;
• Notification does not have to be made individually to students.

Complaints of Alleged Violations:

Complaints of alleged violations may be addressed to:

Family Policy Compliance Office
US Department of Education
400 Maryland Avenue, SW
Washington, DC 20202-5901

Complaints must:

• Be timely submitted, not later than 180 days from the date you learned of the circumstances of the alleged violation
• Contain specific allegations of fact giving reasonable cause to believe that a violation has occurred, including:
  • Relevant dates, such as the date of a request or a disclosure and the date the student learned of the alleged violation;
  • Names and titles of those school officials and other third parties involved;
  • A specific description of the education record around which the alleged violation occurred;
  • A description of any contact with school officials regarding the matter, including dates and estimated times of telephone calls and/or copies of any correspondence exchanged between the student and the school regarding the matter;
  • The name and address of the school, school district, and superintendent of the district;
  • Any additional evidence that would be helpful in the consideration of the complaint.

Questions on how to apply FERPA

To which educational agencies or institutions do these regulations apply?

(a) Except as otherwise noted in § 99.10, this part applies to an educational agency or Institution to which funds have been made available under any program administered by the Secretary, if -

(1) The educational institution provides educational services or instruction, or both, to students; or

(2) The educational agency is authorized to direct and control public elementary or secondary, or postsecondary educational institutions.

(b) This part does not apply to an educational agency or institution solely because students attending that agency or institution receive non-monetary benefits under a program referenced in paragraph (a) of this section, if no funds under that program are made available to the agency or institution.

(c) The Secretary considers funds to be made available to an educational agency or institution if funds under one or more of the programs referenced in paragraph (a) of this section -

1) Are provided to the agency or institution by grant, cooperative agreement, contract, sub grant, or subcontract; or (2) Are provided to students attending the agency or institution and the funds may be paid to the agency or institution by those students for educational purposes, such as under the Pell Grant Program and the Guaranteed Student Loan Program (Titles IV-A-1 and IV-B, respectively, of the Higher Education Act of 1965, as amended).

(d) If an educational agency or institution receives funds under one or more of the programs covered by this section, the regulations in this part apply to the recipient as a whole, including each of its components (such as a department within a university).

What is the purpose of these regulations?

The purpose of this part is to set out requirements for the protection of privacy of parents and students under section 444 of the General Education Provisions Act, as amended.

What are the basic rules?

(A) Student educational records are considered confidential and may not be released without the written consent of the student.

(B) As a faculty or staff member you have a responsibility to protect educational records in your possession.

(C) Some information is considered public (sometimes called “Directory Information”). This info can be released without the student’s written permission. However, the student may opt to consider this info confidential as well. Directory Information is: name, address, email address, full or part time status, and date of birth.

(D) You have access to information only for legitimate use in completion of your responsibilities as university employee. Need to know is the basic principle.

(E) If you are ever in doubt, do not release information until you contact the Office of the Registrar at your university or college or at the Administration office in your adult education cooperative or Even-Start Family Literacy Center.

What are the rights of parents?

An educational agency or institution shall give full rights under the Act to either parent, unless the agency or institution has been provided with evidence that there is a court order, State statute, or legally binding document relating to such matters as divorce, separation, or custody that specifically revokes these rights.

What are the rights of students?

(a) When a student becomes an eligible student, the rights accorded to, and consent required of, parents under this part transfer from the parents to the student.

(b) The Act and this part do not prevent educational agencies or institutions from giving students rights in addition to those given to parents.

(c) An individual who is or has been a student at an educational institution and who applies for admission at another component of that institution does not have rights under this part with respect to records maintained by that other component, including records maintained in connection with the student's application for admission, unless the student is accepted and attends that other component of the institution.

What must an educational agency or institution include in its annual notification?

(a)

(1) Each educational agency or institution shall annually notify parents of students currently in attendance, or eligible students currently in attendance, of their rights under the Act and this part.

(2) The notice must inform parents or eligible students that they have the right to:

(i) Inspect and review the student's education records;

(ii) Seek amendment of the student's education records that the parent or eligible student believes to be inaccurate, misleading, or otherwise in violation of the student's privacy rights;

(iii) Consent to disclosures of personally identifiable information contained in the student's education records, except to the extent that the Act and § 99.31 authorize disclosure without consent; and

(iv) File with the Department a complaint under §§ 99.63 and 99.64 concerning alleged failures by the educational agency or institution to comply with the requirements of the act and this part.

(3) The notice must include all of the following:

(i) The procedure for exercising the right to inspect and review education records.

(ii) The procedure for requesting amendment of records under § 99.20.

(iii) If the educational agency or institution has a policy of disclosing education records under § 99.31(a)(1), a specification of criteria for determining who constitutes a school official and what constitutes a legitimate educational interest.

(b) An educational agency or institution may provide this notice by any means that are reasonably likely to inform the parents or eligible students of their rights.

(1) An educational agency or institution shall effectively notify parents or eligible students who are disabled.

(2) An agency or institution of elementary or secondary education shall effectively notify parents who have a primary or home language other than English.

What provisions apply to records of a law enforcement unit?

(a)

(1) "Law enforcement unit" means any individual, office, department, division, or other component of an educational agency or institution, such as a unit of commissioned police officers or non-commissioned security guards, that is officially authorized or designated by that agency or institution to -

(i) Enforce any local, State, or Federal law, or refer to appropriate authorities a matter for enforcement of any local, State, or Federal law against any individual or organization other than the agency or institution itself; or

(ii) Maintain the physical security and safety of the agency or institution.

(2) A component of an educational agency or institution does not lose its status as a "law enforcement unit" if it also performs other, non-law enforcement functions for the agency or institution, including investigation of Incidents or conduct that constitutes or leads to a disciplinary action or proceedings against the student.

(b)

(1) Records of law enforcement unit means those records, files, documents, and other materials that are-

(i) Created by a law enforcement unit;

(ii) Created for a law enforcement purpose; and

(iii) Maintained by the law enforcement unit.

(2) Records of law enforcement unit does not mean -

(i) Records created by a law enforcement unit for a law enforcement purpose that are maintained by a component of the educational agency or institution other than the law enforcement unit; or

(ii) Records created and maintained by a law enforcement unit exclusively for a non-law enforcement purpose, such as a disciplinary action or proceeding conducted by the educational agency or institution.

(c)

(1) Nothing in the Act prohibits an educational agency or institution from contacting its law enforcement unit, orally or in writing, for the purpose of asking that unit to investigate a possible violation of, or to enforce, any local, State, or Federal law.

(2) Education records, and personally identifiable information contained in education records, do not lose their status as education records and remain subject to the Act, including the disclosure provisions of § 99.30, while in possession of the law enforcement unit.

(d) The Act neither requires nor prohibits the disclosure by any educational agency or institution of its law enforcement unit records.

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