A. BACKGROUND
FERPA, 20 USC 1232g, also known as the Buckley Amendment, was
enacted on August 21, 1974, and took effect on November 19, 1974. It was enacted in response to a growing
public awareness regarding government record keeping and the dissemination of
information commonly considered private in nature. It provides rights of inspection and prohibitions against
unauthorized dissemination of educational information and applies to
elementary, secondary, and post secondary educational agencies. The Department of Health, Education,
and Welfare (now Health and Human Services) was charged with implementing the
act and maintains oversight of complaints under the act today.
B.
APPLICABILITY
1. The act
applies to all public and private institutions of higher education which
receive funds made available under programs administered by the Secretary of
Education, including federal grant monies, Pell grants, Guaranteed Student Loan
Programs, and other such funds. If
an institution receives monies under one or more such programs, the regulations
apply to the recipient as a whole, including each component or department
within the institution. In other
words, most institutions of higher education, whether public or private, fall
under FERPA regulations.
C.
DEFINITIONS: Selected definitions include:
1.
Student--any individual who is or has been in attendance at an
institution and about whom the institution maintains education records. Eligible students are those who are 18
years of age or older.
2.
Parent--parent of a student, including natural parent, guardian,
or an individual acting as a parent in the absence of a parent or guardian.
3.
Attendance--attendance in person or by correspondence. This definition also includes that period
of time during which a student might be working under a work-study
program. Note that it is not
enough to be enrolled; the student must be physically present at the
institution except in cases involving a correspondence course.
4.
Disclosure--to permit access to education records or the
personally identifiable information in the records by any means, including
oral, written, or electronic means.
5.
Personally identifiable information--student's name, parent and
family member names, address of student and parent or family members, a
personal identifier such as social security number or student number, a list of
personal characteristics or other information which would make the student's
identity easily traceable.
6.
Directory information - information contained in education
records which would not generally be considered harmful or an invasion of
privacy if released. Specific
examples include student name, address, telephone number, date and place of
birth, major field of study, participation in recognized activities and sports,
weight and height of athletes, dates of attendance, degrees and awards
received, and the most recent previous educational institution attended. For public institutions in Texas, the
Attorney General has broadened this list somewhat to include marital status,
religious preference, student parking permit information, current class
schedule, current number of hours enrolled, and class roster.
7.
Education records--those records that are directly related to a
student and are maintained by an educational institution. Education records do not include:
a.
records of instructional, supervisory, and administrative
personnel that are kept in the sole possession of the maker of the record and
are not revealed to anyone except a substitute. Example: grade
books and lesson plans.
b.
records of a law enforcement unit of an educational institution
if the records are maintained separately from education records, maintained
solely for enforcement purposes, and disclosed only to law enforcement
officials of the same jurisdiction.
c.
records relating to an individual who is employed by an
educational institution that are maintained in the normal course of business,
related solely to the individual as an employee, and are not available for any
other purpose. Exception: records of an individual who is
employed by the educational institution as a result of his or her status as a
student are educational records and are not excepted from coverage under this
section. Examples include
employment records of research and teaching assistants.
d.
records that contained information about an individual after he
or she is no longer a student at the institution.
e.
records of a student that are made or maintained by a physician,
psychologist, psychiatrist, or other recognized professional or
paraprofessional acting in such capacity which are made or used only in
connection with treatment of the student and are disclosed only to persons
providing the treatment. Treatment
does not include remedial educational activities or activities that are part of
the program of instruction.
D.
RIGHTS OF INSPECTION AND REVIEW
1.
FERPA provides that an institution must allow an eligible
student to inspect and review his or her educational records. The educational agency must provide the
records no later than 45 days after requested. The institution must respond to reasonable requests for
explanations and interpretations of the records. And records may not be destroyed if there is an outstanding
request for inspection. Records
not subject to review include:
a.
financial records of the parents; and
b.
confidential letters and statements of recommendation if the
student has waived the right to review and inspect these documents and the
letters are related to the student's admission, application for employment, or
receipt of an honor or honorary recognition. The waiver is valid only if it is not a condition of
admission to the institution or of receipt of a benefit or service from the
institution and if it is in writing and signed by the student. If the student provides such a waiver,
the student shall receive, upon request, the names of the persons providing the
recommendations, and the institution shall not use the letters for any purpose
other than that for which they were originally intended. The student may revoke the waiver in
writing; however, revocation affects actions only after it is received. In other words, a student may not
revoke the waiver in order to see documents already received.
2.
If a student believes that the records contain inaccurate or
misleading information or information that violates the student's right to
privacy, the student may request that the institution amend the records. If the institution does not agree, it
shall inform the student in writing and advise the student of the right to a
hearing. If, as a result of the
hearing, the institution agrees with the student, it shall amend the record and
notify the student in writing. If
the institution does not agree, it shall advise the student that he or she may
place a written statement in the file contesting the information. If the student chooses this option, the
statement must be maintained with the contested information and disclosed in
conjunction with any release of the contested information. Minimum hearing requirements include:
a.
the hearing must be held within a reasonable time after the
request;
b.
the student will be provided reasonable notice of the date,
place, and time;
c.
the individual conducting the hearing must not have a direct
interest in the outcome;
d.
the student must have a fair opportunity to present his/her case
and may be assisted by an attorney;
e.
the decision must be in writing and rendered within a reasonable
time after the hearing. It must be
based solely on the evidence presented at the hearing and must include a
summary of the evidence and the reasons for the decision.
3.
The courts have ruled that FERPA does not provide a means by
which a student may obtain information on how a particular grade was
assigned. "At most, a student
is only entitled to know whether or not the assigned grade was recorded
accurately in the student's record."
Tarka v. Cunningham, 741 F. Supp. 1281 (W. D. Tex. 1990).
E.
DISCLOSURE
1.
In general, an eligible student's consent must be obtained prior
to disclosing personally identifiable information from the student's
educational records. The consent
form must be in writing, stating the date, the records to be released, and the
purpose of the disclosure.
Exceptions to this rule include:
a.
directory information unless the student has requested in
writing that all or any portion of those items designated as directory
information not be disclosed;
b.
disclosures to internal officials who have a legitimate
educational interest in the information;
c.
disclosures to another educational institution where the student
seeks or intends to enroll;
d.
disclosure is to be made to authorized representatives of the
Comptroller General of the U.S., the Secretary of Education, or state and local
educational authorities;
e.
financial aid which the student has applied for or received if
the disclosure is for the purpose of determining eligibility, amount or
conditions of aid, or to enforce the terms and conditions of the aid;
f.
disclosures to organizations conducting studies for or on behalf
of educational agencies to develop, validate, or administer predictive tests or
student aid programs or to improve instruction;
g.
disclosures to accrediting agencies to carry out accrediting
functions; parents of a dependent student, as defined by the Internal Revenue
Code;
h.
disclosure is to comply with a lawfully issued subpoena or court
order if the institution makes a reasonable effort to inform the student in
advance of compliance;
i.
emergencies if knowledge of the information is necessary to
protect the health or safety of the student
j.
or other individual disclosures of the results of disciplinary
proceedings conducted by the institution against the alleged perpetrator of any
crime to the alleged victims of any crime of violence.
2.
An educational institution has a duty to record and maintain
each request and release of personally identifiable information from a
student's educational records except when the request is received from an
institution official, a parent or eligible student, or a person with written
consent or when the request is for directory information.
3.
A student's privacy rights under FERPA and the Open Records Act
terminate upon death. See, Open
Records Decision 524, May 18, 1989.
F.
POLICY REQUIREMENTS
1.
FERPA requires each institution to develop a policy spelling out
the manner in which the institution advises parents and students of their
rights under the act; the procedure to inspect and review records, including
legitimate reasons to deny a request, and a schedule of fees for copying; a
list of the types and locations of educational records, including the title of
the individual responsible for those records; a statement that personally
identifiable information will not be released without written consent except
under the exceptions listed above; if the institution releases information to
internal officials, specify the criteria for defining a legitimate educational
interest; a list of the items which constitute directory information; a
statement regarding the right to a hearing and an opportunity to correct or protest
the record. The policy shall be in
writing and available upon request.
G.
ENFORCEMENT
1.
The Family Policy and Regulations Office of the Department of
Education is authorized to investigate and review potential violations and to
provide technical assistance regarding compliance issues.
2.
In the event that the office determines that a complaint is
meritorious, the office shall recommend steps necessary to insure compliance
with the act and provide a reasonable time for an institution to come into
compliance.
3.
If an institution does not come into compliance, the department
is authorized to terminate all or any portion of the institution's federal
funds.
4.
There is no private right of action under FERPA; in other words,
an aggrieved student may not bring suit in state or federal court for an
alleged violation under the act. Tarka
v. Franklin, 891 F.2d 102 (5th Cir. 1987) (Footer, 1992).
FERPA IN SIMPLER TERMS
Since
advisors maintain educational records -- records of advisees' grades and other
academic information -- they must understand the provisions of the Family
Educational Rights and Privacy Act of 1974 (commonly referred to as The
Buckley Amendment). Basically,
this act provides students with access to information placed in their advising
files. Furthermore, it ensures
that only school officials with a legitimate educational interest may see the
student's file. The student's
permission must be obtained before any other party may have access to the
student's file. Thus, advisors,
upon request, must allow students access to their advising file. This fact, however, does exclude a student's
right of access to personal notes that the advisor may have made during the
advising sessions. Under this Act,
these notes constitute records made by educational personnel and kept solely in
their possession. Advisors may
allow someone who temporarily performs his/her advising duties to see the
notes; if the advisor is to be replaced permanently, however, he/she should
remove any personal notes from the student's file before transferring the file
to the replacement.
Under
legislation, the student has the right to an informal hearing regarding
material in his record. If at this
hearing the student does not receive satisfaction, then he/she may insert
explanatory material in the file.
The Act specifically denies students the right to a hearing regarding
grades received. The student,
however, may challenge the accuracy of transferring grades to the student's
record.
Information
in the file may be sent to parents of financially dependent students without
the student's written consent. The
registrar's office usually maintains information regarding a student's status
as a financial dependent.
Institutional policy, however, will determine whether or not information
must be sent to parents without the student's consent.
According
to the Buckley Amendment, a record also must be kept of requests received from
school officials to obtain information from the student's file. The record should not only identify the
official making the request, but also the official's legitimate educational
reason for requesting the information.
The record should remain in the student's file. Each institution is individually
responsible for determining which parties qualify as "school
officials" and what constitutes a "legitimate educational
interest." Advisors should
familiarize themselves with their institution's policy governing this matter,
as well as other institutional policies regarding implementation of the Buckley
Amendment.
LEGAL ISSUES IN ACADEMIC
ADVISING
The
academic advisor is on the "front line" of the college or university
in dealing with students. It is a
critical position, and the success or failure of the student's education and
growth is influenced greatly by the advising function. In today's litigious atmosphere, the
advising function is more critical than ever.
Academic
advising occurs under the umbrella of academic affairs. The courts have always hesitated to
enter the academic arena and substitute their judgment for that of the
academician. In doing so, they
have recognized the academic freedom which protects academic decisions,
including advising decisions. They
have recognized also that their repeated presence in the academic community
possibly could cause deterioration in the otherwise beneficial student-faculty
relationship. Thus, if
academicians do not abuse their discretion in dealing with students, they need
not fear judicial intervention.
The courts will intervene, however, if evidence exists of arbitrary or
negligent treatment of students or a denial of their protected rights. The increasing number of court
decisions dealing with classroom and academic matters attests to the growing
judicial sensitivity to students' rights in academic affairs. The advisor's job falls within this
academic affairs area, and, thus, advisors must understand the legal issues
involving four major areas: the
contractual relationship between student and institution, guidelines governing
privacy of student records, the concept of privileged communications, and
academic due process and the need for grievance procedures.
In
academic affairs, a contractual relationship exists between the student and the
institution. The basic provisions
of the college catalog, recruiting brochures, various bulletins, and the
student handbook become part of the contract. The institution sets forth certain requirements for passing
courses and for successful completion of programs and subsequent
graduation. If students fail to
meet the required standards, they can be penalized through such action as
dismissal, suspension, or failure to graduate on schedule; if the institution
fails to respect its own regulations, then the student may seek judicial
relief.
An
institution may create certain contractual obligations through statements in
its publications. Advisors'
obligations and responsibilities usually appear in an advisor's handbook and
often in publications readily available to the student. An increasing emphasis on quality
advising to enhance retention brings added responsibilities to the
advisor. More and more advisors not
only are expected to understand such things as scheduling and registration
procedures and degree and program requirements, but also they may be expected
to function as a referral service or possibly as career counselors. Thus, if institutions promise such
services from their advising system, they should ensure that their advisors can
deliver these services. Where an
advisor did not, or could not, perform his contractual obligation, then
possibly liability could be present.
Thus, institutions should be conscious of an advisor's obligations which
might be created by unequivocal statements regarding advisors'
responsibilities.
Most
institutions' catalogs state that the ultimate responsibility for knowing
degree requirements rests with the student. This type of statement normally would protect advisors if
they commit an advising error.
Generally, the advisor is not going to be held personally liable for
erroneous advising in the absence of gross negligence, irresponsible behavior,
or arbitrary or capricious treatment of the student. Advisors should keep notes of their discussions with students
during advising sessions. An
accurate record of advising sessions would help solve any disputes over the
content of previous advising and also serve as a legitimate protection against
claims of erroneous advising
Although
the law recognizes the student's right to privacy of his/her educational
records, it also recognizes the advisor's right to privileged
communications. Thus, in an effort
to help a student, advisors can discuss confidential information regarding that
student with other appropriate individuals. The courts generally will respect the right to such
communications and will not hold the advisor liable for statements considered
as privileged communications. This
right, however, is not an absolute one, and advisors must exercise good
judgment in making all confidential statements. To determine the appropriateness of confidential
discussions, an advisor should simply ask if such a discussion would serve the
student's best interest.
At
times, students will come to advisors with personal problems; normally these
problems should remain confidential.
In some instances, however, a student may tell the advisor of certain
intentions that would prove harmful to the student or possibly to others, such
as the intention to commit suicide or the desire to harm another person. Although the statements are made in
confidence, an obligation rests with the advisor to disclose such information
to an appropriate party, such as parents, an intended victim, a school
psychologist, or police.
The
courts have mandated that students receive due process guarantees of notice and
hearing in disciplinary cases, but students with grievances concerning academic
affairs, such as situations involving erroneous advising, disputed grades, or
alleged arbitrary course requirements, generally find themselves without due
process guarantees. The courts, to
this date, have not mandated legally what constitutes due process in academic
affairs. Courts generally will
respect the institution's procedures for handling academic affairs cases, as
well as their decisions resolving these cases. As previously indicated, the courts will intervene in cases
involving seemingly arbitrary or capricious treatment of a student. The voluntary application, however, of
the spirit and principles of due process to academic affairs can reduce the
incentives for legalism and reliance upon the courts by students when they feel
aggrieved. With clearly defined
grievance procedures in place, courts will decline to intervene until a student
exhausts this administrative remedy.
Thus individual departments or divisions of the institution should
outline procedures that students will follow in registering any grievances resulting
from erroneous advising or any other action taken by the advisor. The following suggested procedures
should not be construed as specific prescriptions to cover every case, but
rather as a guideline:
1. Institutions
should define clearly and publish the responsibilities of advisors and students
in the advisor-advisee relationship.
2. Information
the student is expected to know, such as academic requirements for continuance
and graduation, should be clearly specified and publicized.
3. A
well-documented and orderly procedure of appeal should be established and
promulgated. A committee should be
appointed in each department or division or one committee for the entire
institution, if that is deemed appropriate, which would hear complaints by
students against advisors for alleged advising errors or negligent and
irresponsible advising. The
advisor against whom the allegations have been made should receive all due
process rights in defending his/her actions.
Implementation
and promulgation of these recommendations would not open a Pandora's box with a
proliferation of student complaints against advisors. Rather, advisors would maintain a responsible attitude
toward students, and students would understand more clearly their
responsibilities in the advising process.
The channeling of complaints through an appointed committee would
formalize a fair and reasonable procedure which does not exist on many campuses
today.
Two
elements have combined to cause an increase in the number of academic affairs
cases: arrival of consumerism to
the campus and the lowered age of majority. Consumerism on campus today considers whether or not an
institution delivers to the student the product it claims in its various
publications, as well as in oral presentations. As legal adults, by virtue of the lowered age of majority,
students must accept more responsibility for their actions on campus and thus
also may have a great inclination to press charges against the institution when
they believe they have received arbitrary or capricious treatment. This does not mean that all students
might file a court suit when they reach the age of majority, but since they
must accept the responsibilities of that status they will most likely be more
zealous of their rights. With
these prevailing conditions and the fact that quality advising is fast becoming
a criterion for promotion, tenure, and salary increases, advisors should seek
to understand the legal issues related to advising. This understanding will ensure a responsible attitude toward
students and protect their rights as well as those of the advisor.
By
knowing the current legal parameters and by practicing the "golden
rule," advisors will create and maintain those policies and practices that
respect the worth and dignity of each student. By doing so, they will help create a better climate for
reducing the incentives for legalism and respecting the rights, freedoms, and
responsibilities of all (Young, 1982, pp. 41-45).