FERPA and Education Data Availability

This past weekend, the Chronicle of Higher Education published an opinion piece titled “Ferpa Frustrations: It’s Time for Reform” by Frank D. LoMonte. In it, LoMonte, the executive director of the Student Press Law Center, discusses the many pitfalls of the Family Educational Rights and Privacy Act (FERPA). Specifically, he complains that the prevailing interpretation of FERPA allows colleges and universities to deny requests from journalists for information, even if the information does not identify individual students. That’s a good point, but FERPA has broader implications for more than just journalists – many states and institutions use it to obscure important data on funding for education services. And these data could play an important role in improving services and instruction for students.

FERPA was enacted by the federal government in 1974 to protect students from the purposeful or accidental release of their private educational records. Its implementation is overseen by the U.S. Department of Education. Essentially, FERPA guarantees parents and students the right to personally examine their educational records from any institution that receives federal funds. Typically, educational records are considered to be hard copies of a student’s permanent file with the school, like transcripts and disciplinary records. A school may also share any “directory” information without permission, which includes a student’s name, address, telephone number, date and place of birth, honors and awards, and dates of attendance unless a parent requests otherwise. Finally, the law states that schools must have written permission to release any information from a student’s record unless it is requested by:

• 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;
• 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.

Initially, the FERPA provisions seem clear enough. A school must have parental permission to release any data unless it pertains to basic “directory” information. But it turns out that schools and other institutions raise many questions as they attempt to follow the law. For example: Does an email between a teacher and parent count as an educational record? Are need-based scholarships considered “honors and awards”? What constitutes identifying information? Could data on the number of students participating in certain programs violate privacy laws by accidentally identifying students? And what about data on funding for these programs?

It turns out that many states and schools, as well as colleges and universities, use these uncertainties as excuses to avoid fulfilling reasonable information requests because they fear that they will accidentally reveal too much and be punished for it. This fear is somewhat legitimate – schools or states that violate FERPA by illegally revealing private data stand to lose all federal funding support. On the other hand, those that don’t provide sufficient information only receive a court order directing them to release more.

These imbalanced repercussions for FERPA violations ultimately hurt policymakers, journalists, and even students who are seeking transparency around education services and funding. States and schools have, for example, interpreted FERPA to mean that they do not have to release data on funding for certain small education programs because it could somehow identify student participants. Similarly, states have avoided linking data systems from various agencies to get a better picture of the whole student (like linking education data with juvenile justice data or food stamp data).

The Obama Administration is making some efforts to remove these barriers that states and schools have put in place in the name of FERPA. For example, in April the Administration announced that it will release new rules for FERPA that will clarify how states can properly use education data in longitudinal data systems without violating privacy laws. But many privacy advocates are uneasy about this move.

The Obama Administration needs to take a hard line in its implementation of FERPA to eliminate these grey areas and ensure that the law is being implemented evenly across the nation and consistent with Congressional intent. Until then, states and schools will continue to deny reasonable data requests in the name of student privacy. Expanded data use at the federal, state, and local can improve transparency for education funding and services. But even more importantly, it can improve equity and instruction.