Please read the information below. These experts were lifted from the
textbook.
- Respond to the discussion questions in the case study.
- Respond to at least two comments on your classmates' posts.
- Post a "What if" question on one of the two topics.
FAMILY EDUCATION RIGHTS AND PRIVACY ACT (FERPA)
Landmark U.S. Supreme Court Rulings
On February 1 9, 2002, the U.S. Supreme Court ruled in Owasso ISD v. Falvo that peer grading
does not violate FERPA.7 Student papers are not “maintained” within the meaning of FERPA
when students correct them or call out grades. “Maintained” suggested that FERPA records were
kept in files or cabinets in a records room at the school. The court stated further that FERPA
should not be construed to prohibit techniques currently used by teachers. If homework or class
work were considered educational records, a substantial burden would be placed on teachers
across the country. Simply stated, an assignment is not considered an educational record as soon
as it is graded by another student.
On June 20, 2002, the U.S. Supreme Court ruled in Doe v. Gonzaga. 8 In the Gonzaga case,
a student brought litigation against the university for disclosing personally identifiable informa-
tion, without his consent, in violation of FERPA. The Supreme Court ruled that students and par-
ents may not sue for damages under 42 U.S.C. § 1 983 to enforce provisions of FERPA.
U.S. Court of Appeals for the Sixth Circuit Ruling
On June 27, 2002, the Sixth Circuit Court of Appeals unanimously affirmed a lower court’s rul-
ing that university disciplinary records are “education records” under FERPA and that disclosing
such records without students’ consent constitutes a violation of FERPA. In 1 998, the U.S.
Department of Education asked a federal district court in Ohio to enjoin Miami University and
The Ohio State University from disclosing records containing the names of student victims
and accused students as prohibited under FERPA.9 On March 20, 2000, the U.S. District Court for the Southern District of Ohio permanently enjoined the two Ohio universities from disclosing
their on-campus disciplinary records to the public under the state’s open-records law.
In affirming the ruling, the circuit court concluded that continued release of student disci-
plinary records “will irreparably harm the United States” and the Department of Education. This
is important for three reasons:
1. The court agreed with the lower court that the Student Right-to-Know and Campus
Security Act provides parents and students with statistical information about the type and
amount of crimes on campus.
stated that Congress, in amending FERPA in 1 998 to allow postsecondary institutions to
disclose the final results of disciplinary proceedings, must have intended that disciplinary
records be education records or this amendment would be “superfluous.”
tive relief in this case because none of the administrative remedies authorized by FERPA
would have stopped the violations. In effect, the court held that the department can take
preemptive actions in enforcing FERPA, rather than only after violations occur.
NO CHILD LEFT BEHIND ACT OF 2002
Annual Notification Requirements
The Secretary of Education is now required to annually inform each state education agency (SEA)
and each local education agency (LEA) of their obligations under both FERPA and the Protection
of Pupil Rights Amendment (PPRA). This provision is found in § 1061(c)(5)(C), the amendments
to PPRA (discussed below). The Family Policy Compliance Office (FPCO) is in the process of
finalizing the notices to be provided to SEAs and LEAs. (See Chapter 4 for No Child Left Behind
and School Safety.)
Transfer of School Disciplinary Records
FERPA currently permits schools to transfer any and all education records, including discipli-
nary records, on a student who is transferring to another school. See § 99.31 (a)(2) and § 99.34 of
the FERPA regulations. This new provision requires states that receive funds under the
Elementary and Secondary Education Act (ESEA) to provide, within two years, an assurance to
the secretary of education that the state “has a procedure in place to facilitate the transfer of dis-
ciplinary records, with respect to a suspension or expulsion, by local educational agencies to any
private or public elementary school or secondary school for any student who is enrolled or seeks,
intends, or is instructed to enroll, on a full- or part-time basis, in the school.”
FERPA currently allows schools to designate and disclose without consent certain items of infor-
mation as “directory information.” FERPA regulations define “directory information” under
§ 99.3 of the regulations and set forth the requirements for implementing a “directory information”
policy under § 99.37 of FERPA. Generally, “directory information” may be disclosed by a school
to any party, provided the requirements of FERPA are followed.
Congress passed a provision in the No Child Left Behind (NCLB) Act that addresses the
disclosure of directory-type information (students’ names, addresses, and telephone listings) to military recruiters. Congress also included similar language in the National Defense
Authorization Act for fiscal year 2002. Both laws, with some exceptions, require schools to pro-
vide directory-type information to military recruiters who request it. Typically, recruiters request
names, addresses, and telephone listings of junior and senior high school students that will be
used for recruiting purposes and college scholarships offered by the military.
Student Privacy and Physical Exams
NCLB contains a major amendment to PPRA that gives parents more rights with regard to the
surveying of minor students, the collection of information from students for marketing purposes,
and certain nonemergency medical examinations. PPRA has been referred to as the Hatch
Amendment and the Grassley Amendment, after the authors of amendments to the law. School
officials may also hear the law referred to as the Tiahrt Amendment, after Congressman Todd
Tiahrt, who introduced to PPRA the changes regarding surveys. The statute is found in 20 U.S.C.
§ 1 232h, and the regulations are found in 34 CFR Part 98.
Defamation, discussed in Chapter 6, regarding liability applies to student records. When
school personnel communicate personal and sensitive information to another unauthorized
person that results in injury to the student’s reputation or standing in the school or that dimin-
ishes the respect and esteem to which the student is held, they may face charges of libel or
slander, depending on the manner and intent with which such information was communi-
cated. Defamation is a tort or civil wrong committed against another in which recovery is
appropriate with a showing that the offended party received injury based on the deliberate or
malicious action of others.
Slander is oral defamation, which occurs when school personnel inadvertently communicate
sensitive and damaging information contained in student files to others who have no need to be
informed. Libel and slander involve communication to a third party. Information contained in
student files is there for the exclusive use of the teacher, principal, or counselor who has a legiti-
mate interest in accessing this information as each works with the student. Information should
not be accessed without meeting this requirement.
Once the information is ascertained, it should be used only in providing and improv-
ing educational opportunities for the student. By no means should confidential information
be discussed in a thoughtless and j oking manner. Under no circumstances should the stu-
dent be ridiculed. The law is very specific in indicating that personally identifiable infor-
mation should not be communicated to third parties without proper consent. When this is
done, not only has the law been violated, but the educator has run the risk of defaming the
student. Off-the-cuff remarks and sharing sensitive information regarding a student are
absolutely prohibited and may result in liability damages to those who are guilty of com-
mitting such acts.
School personnel are well advised to maintain strict confidentiality in all cases involving
students’ personal files. In cases involving claim of personal injury, the burden of proof rests
with the student in demonstrating that actual harm occurred based on deliberate communication
to a third party.
Libel
Libel, unlike slander, is written defamation. Teachers, counselors, and principals should refrain
from including damaging information in the student’s record for which there is no basis. Any
information recorded should be factual and specific with respect to serious infractions committed
by the student—for example, time and place in which infractions occurred and possible wit-
nesses who might verify, if needed, that the incident described is an accurate account of what
actually occurred.
Another consideration involves a determination as to whether certain types of information
should be included in the student’s permanent file. Some legal experts feel that information that
is subject to change and minor disciplinary infractions should be maintained in a separate file
and destroyed after the student leaves school. For example, if there is no evidence of serious and
recurring behavior problems, one might question the wisdom of including a single occurrence on
the student’s permanent records. On the other hand, if there is a strong belief that the behavior is
sufficiently serious that it needs to be passed on to those who will be working with the student in
the future, it might be appropriate, under the circumstances, to do so. Sound and rational judg-
ment is required in these cases. These decisions must be carefully drawn, due to the serious
implications involved. When it becomes necessary to record a serious disciplinary infraction on
the student’s record, it should be executed in the presence of the student, who should be provided
a copy of the document.
Schools should refrain from statements that are based on opinion, particularly those
involving questions of morality, contagious diseases, family marital conditions, and mental or
emotional issues. These statements are damaging, based on their content, and, if communicated
to others, may result in injury to the student’s reputation, self-esteem, or standing in the school.
Categorical statements or stereotypical statements should be avoided. If educators adhere to con-
fidentiality and respect for the privacy rights of students, they will avoid liability claims involv-
ing injury to students. Professionalism and ethics dictate that these practices be followed.
Privilege
On many occasions, school personnel are requested to provide either oral or written information
regarding a student, some of which might be contained in the student’s file. When such requests
are made and school personnel respond in a truthful and reasonable manner in accordance with
their prescribed duties, they are protected by qualified privilege. When school personnel and the
recipient of the information both have a common interest, they also are protected by a qualified
privilege when the communication is reasonable to achieve their objective. Those who have com-
mon interest would likely include counselors, subject matter teachers, administrators, and par-
ents. Interestingly, this privilege is lost if the communication is transmitted to another who does
not share this common interest and consequently has no need to be apprised of the information.
Qualified privilege is based on the premise that the educator is operating in good faith. When
damaging or sensitive information is communicated to others who have no need to know, good
faith has been violated. Good faith requires that a legitimate purpose be served by communicat-
ing the information. Common interest in the student’s well-being would constitute a legitimate
purpose. Good faith efforts dictate that as information is shared with other eligible parties, it is
communicated for legitimate purposes and without any intent or desire to damage the student. An absence of good faith may result in personal damages against those who do not operate in a
reasonable and prudent manner.
An unusual case arose in Maryland when a special education student was sexually abused
by her grandfather, who was charged with child abuse. Prior to his trial, he attempted to sub-
poena his granddaughter’s school records. The child was enrolled in a special education program
for emotionally disturbed children. The school district refused to furnish the records and filed a
motion for a protective order. The defense attorney argued that the records were relevant in that
they could reveal mental deficiencies that affected the child’s ability to control her actions. The
judge examined the records privately and determined that there was nothing contained in them
that would serve to impeach the child’s testimony. The grandfather was convicted and then
appealed his conviction, contending that his rights were violated when the judge refused to allow
him access to his granddaughter’s records.
Maryland requires parental consent or a court order before a student’s record can be dis-
closed. The Sixth Amendment to the Constitution requires that a criminal defendant be allowed
to confront and cross-examine his or her accusers. The defendant in this case (Zall v. State)
argued that the information contained in personal records was needed in order to cross-examine
the granddaughter. The court ruled that the defendant’s right to cross-examine was not violated
since it had been established by the lower court that the files contained no material evidence per-
tinent to the case. The Sixth Amendment only requires that the defendant receive material evi-
dence. It is the court’s role, not the defendant’s, to determine material evidence. The defendant’s
appeal was denied.
Acts of Malice
Malice exists when there is intent to harm or injure another. Intent is an important element
regarding malicious behavior. When statements are communicated about a student, either
written or oral, with the intent to injure his or her reputation, a tortious act has occurred, espe-
cially if these statements are false. Truth is a defense for liability, if no malicious intent is
present. School personnel should exercise care in ensuring that statements communicated to
others are free of malice, based on defensible evidence, and communicated in a professional,
nonbiased, and truthful manner. When evidence reveals that school personnel acted in bad
faith with the intent to injure a student’s reputation and standing in the school or community,
liability charges may be justified, even if statements are true. Students are entitled to a liberty
right with respect to the expectation that their reputation be protected against unwarranted
attacks.
There are essentially two types of malice. In implied malice, the offender has no defense
for conveying harmful information. Such statements normally fall in the category of unsolicited
or derogatory statements aimed at another person. In actual malice, the offended person must
demonstrate that the person making the offensive comment had a motive for doing so and that
this motive was calculated to generate ill will against the offended person. Both types may create
serious legal problems for school personnel.
Since the passage of FERPA, numerous forms of litigation have surfaced, covering a full
range of legal issues. The following cases summarize a number of issues faced by the courts
related to the enforcement of FERPA:
dents with English deficiencies because complainants had demonstrated a genuine need
for the information that outweighed the privacy rights of students.
2. Another New York court ruled that a father’s request to release third-grade test scores of
other students so that they could be compared to his child’s score could be honored if the
test results were not identified by student names.
mented during a board meeting that marijuana cigarettes had been found in a student’s car.
His statement was held to be privileged.
jury when he could not show that they bore no relevance to the subject under investigation.
their school district disclose standardized achievement scores for students for certain years,
grades, and schools within the district, along with a listing of educational programs available in
those schools. The district, using FERPA as its defense, refused to comply with their request.
Suit was filed by parents, seeking disclosure under the Freedom of Information Act. The district
court dismissed the case, which was then appealed to the Illinois Court of Appeals. The appeals
court reversed the district’s court decision and remanded, finding that the district had an obliga-
tion to release and mask all released information regarding students. The school district then
appealed, contending that releasing masked information was in conflict with the Freedom of
Information Act and would not protect the privacy rights of students. The Supreme Court held
that the act was designed to open governmental records to public scrutiny. The act did not pro-
hibit disclosure of masked student records. Since no students were identified, there is no invasion
of privacy and the records must be released.
Main Points: Liability and Student Records
- School districts and schools should have legally defensible policies and procedures consistent with the requirements of FERPA. Students, parents, and legal guardians should be informed of their rights under this act.
- Accurate records should be maintained in the student’s file, indicating the name, title, date, description of educational interest, specific records examined, and the place of examination of student records for those who have access.
- Any corrections or adjustments to student records should be dated and initialed by the person responsible, with the knowledge and approval of school officials.
- School personnel should avoid labeling children.
- When it becomes necessary to place disciplinary infraction information on student records, the information should be specific regarding the infraction committed—time, place, and witnesses, as appropriate. The student should be present when such information is recorded.
- School personnel should refrain from aimless chatter involving third parties regarding confidential information found on student records. Gossip or careless talk among school personnel calculated to harm a student is not protected by qualified privilege.
- Student records should be maintained in a safe and secure place and should not be removed from school premises by school personnel unless proper authorization is secured.
- Unless prohibited by court order, the noncustodial parent should be afforded the same right to access student records as the custodial parent.
- To avoid allegations of malicious intent, transmit only the information that is requested by a prospective employer.
- Refrain from releasing information over the telephone, unless identity of the other party has been firmly established.
- Where conflict or difficulty arises regarding interpretation of FERPA, consultation with the school district’s attorney would be appropriate.
- Public disclosures of students’ grades will not likely be supported by the courts. Such practices violate the intent of FERPA and should not be supported by school officials.
Student Records and FERPA
Bernice Evans, mother of a twelve-year-old daughter, sued the board of education for releasing
to a local newspaper reporter information regarding her daughter’s medical condition. The news-
paper article referred to a twelve-year-old female hermaphrodite with severe emotional and
behavioral problems. School board members asserted that they were simply attempting to
explain why the district needed to expand emergency funds to meet the needs of students with
special problems. They further argued that the information did not personally identify the student
because no name was revealed to the reporter.
Discussion Questions:
- Did the school board err in releasing this information? Why or why not?
- Does Mrs. Evans have a valid claim? Why or why not?
- Does the school board have a defensible basis for revealing the information? Why or why not?
- How does FERPA apply in this case?
- How do you think the court would rule in this case?
- Provide a rationale for your response.
- What are the administrative implications of this case?
Disclosure of Disciplinary Action Involving a Student
An elementary student was disciplined for verbally and physically abusing other students.
Parents of the victims were notified by the district of the student’s actions. The assaulting student
was suspended. His parent filed suit alleging a violation of FERPA by disclosing information
about her son to other parents.
Discussion Questions:
- Does the complaining parent have a valid claim? If so, why? Why or why not?
- Does disclosure under the circumstances described constitute a FERPA violation? Why or why not?
- Does the memorandum sent to parents constitute a release of an educational record? Why or why not?
- How would a court likely rule on the complaining parent’s allegation? Provide a rationale for your response.
- What criteria would the court use in reaching a decision?
- What are the administrative implications in this case?
