On March 24, 2008, the United States Department of Education published in the Federal Register proposed amendments to the regulations implementing the Family Education Rights and Privacy Act (FERPA).  FERPA is the federal statute which secures the privacy rights of public school and university students, and governs the collection and retention of certain student-related information.

FERPA has not been amended since 2000, and several of the proposed changes were made necessary by court decisions and recent legislation, such as the Patriot Act, and developments in technology.  The proposed regulations undergo a period of public comment and review before becoming final, so there may be some change in the text of the regulations before their eventual adoption, or they may be withdrawn altogether. 

Specifically, the proposed changes include the following:

  • The definition of “personally identifiable information,” which presently is comprised of information such as a student’s name, social security number or student number, would be broadened to include information such as date and place of birth and mother’s maiden name.
  • With regard to directory information, under the proposed regulations a student’s social security number or student I.D. number are added to the types of personally identifiable information which may not be disclosed as part of directory information.  Social security numbers and student I.D. numbers may, however, continue to be used on schedules or class rosters provided only to individuals with a legitimate educational interest.
  • Schools would be permitted under the new regulations to disclose any education records or personally identifiable information from education records to a student’s new school if the disclosure relates to the student’s enrollment in the new school and such disclosure may take place even after the student is already attending the new school.
  • The proposed regulations amend the term “attendance” to include students who receive instruction through Cyber School or other similar technological means.
  • The proposed amendments permit school districts to disclose student data without obtaining the consent of parents to any outside contractors or non-district employees who perform work normally undertaken by school employees, such as testing or record keeping.  This amendment may prompt school districts to amend their annual FERPA notification to specify that outside parties may be provided access to education records.
  • Another amendment would refine the process by which certain school employees obtain access to records on the basis of having a “legitimate educational interest” in the record.  Under the new regulations, school districts would be required to use “reasonable methods” to insure that only employees with a legitimate educational interest obtain access to either computerized or paper records.  Schools could fulfill this requirement either by restricting access with some physical or technological restraint, such as a locked cabinet or password-based or role-based software security system, or by some other effective method to restrict information access to individuals with legitimate educational interest. 
  • The proposed amendments would mandate that a district disclosing educational records to comply with a court order or subpoena provide notice to parents and eligible students of such disclosure.

We will update the status of these proposed regulations and any changes made to them in a future edition of School Law News.

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Alfred Maiello

Alfred C. Maiello is the founding member of MBM and has represented area school districts as solicitor for 50 years. He counsels school districts and educational institutions on leading developments in school law and guiding them through their day-to-day and long-term challenges.