The Family Educational Rights and Privacy Act of 1974 (FERPA) is the preeminent federal law governing the collection, storage, and dissemination of the personal information of students in the educational environment. FERPA is complex, particularly the regulatory framework supporting the law, which can lead to confusion among parents and educational staff regarding what are and are not FERPA violations and the consequences of any such violations. Let’s shed some light on the subject.
Department of Education Funding
The statutory language of FERPA begins with the following statement:
(a) Conditions for availability of funds to educational agencies or institutions; inspection and review of education records; specific information to be made available; procedure for access to education records; reasonableness of time for such access; hearings; written explanations by parents; definitions.
[20 U.S. Code Section 1232g (emphasis added)]
As an FERPA lawyer, I’ve highlighted the initial language of the code because it is critical to understanding this law. FERPA is what is known as “carrot and stick” legislation. Educational institutions that comply with the law can receive funding from the Department of Education [the carrot]. Institutions that do not…do not [the stick]. However, those schools that do not take funding from the Department of Education are also excused from any obligation to comply with FERPA. Private schools, for example, rarely receive federal funding, so these institutions are not bound by FERPA.
FERPA Violation Examples
For educational institutions that do receive federal funding, FERPA violations are a legitimate concern. FERPA classifies the personal information of students as either “education records” or “directory information.” As a very general notion, written consent is required before information in education records can be released to third parties while no such permission is needed for directory information. Examples of FERPA violations would include the disclosure of the following particulars to third parties:
- A student’s social security number,
- A student’s grades,
- An academic evaluation of a student,
- Medical records of a student such as vaccination records, and
- Attendance records.
Let’s assume your 9-year-old son attends Carver Elementary School. The New York Times is doing a story correlating student grades to whether students have had certain vaccinations. The administration for Carver provides the Times with access to student records. Such access would clearly constitute an FERPA violation.
In a modern context, we are also seeing FERPA violations occurring in the online environment. Problems arise when teachers and students communicate via online platforms or social media. The flow of information can result in teachers mentioning information that should remain private. For example, the attendance record, academic evaluation of a student, or their grades. Public schools are being alerted to the problem and are starting to provide training to teachers and other staff, but the problem still occurs frequently.
FERPA Violation Cases
Can a parent or student sue an educational institution that receives funding from the Department of Education for FERPA violations? Federal courts traditionally were divided on the issue. A few district courts took the view that FERPA provided students with a right to claim a violation of their civil rights. Other district courts found no such right. The spilt in the districts caused no small amount of headaches as schools in one district faced legal threats while those in another had no such concerns.
The Supreme Court finally stepped in to settle the matter in 2002 in a 7-2 decision. In Gonzaga University v. Doe, 536 U.S. 273, the majority justices found that FERPA prohibits only “the federal funding of educational institutions that have a policy or practice of releasing education records to unauthorized persons.” Since the law only addressed funding, the Court ruled students and parents do not have the right to bring FERPA legal actions.
Can parents or students sue an educational institution for an FERPA violation? The answer is no.
FERPA Violation Penalty and Consequences
FERPA violations in public schools do have consequences. Take FERPA violations in elementary schools, for example. If the Department of Education investigates and finds a violation, the FERPA penalty can be the loss of all or part of the funding provided by the Department of Education.
How likely is this consequence?
Instead, the Department of Educational will typically notify the school of the violations and then demand specific changes to bring the school into compliance. If a school refuses to comply, only then will the Department of Education consider removing all or part of the funding provided to the school. In nearly every case, the school will comply with the demanded changes to keep its financing in place.
If you suspect FERPA violations, the first step is to contact us to determine if actual violations exist pursuant to the code and regulations associated with the legislation. If we find infractions, the next step is to present the violations to the institution and demand remedial steps. If negotiations do not meet with the desired outcome, a complaint can be filed with the Department of Education in an effort to spur an official investigation into the conduct of the educational institution in question.
FERPA violations occur continuously. The positive news is most educational institutions will take remedial steps when presented with the infractions. Contact us today to learn more.
Richard A. Chapo, Esq.