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My position in Residence Life at a state-funded institution of higher education comes with several responsibilities for student education. Not the least of which includes student privacy. The Family Educational Rights and Privacy Act of 1974 (FERPA) was enacted to protect the rights of parents and students. Zach Greenberg (2018) explains how the noble cause of protecting student privacy has been warped into a way for institutional cover-ups or stonewalling. This has led to serious misuses of FERPA. My goal is to learn more about such an important law and to help others in higher education realize the importance of protecting student privacy.

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The governing body responsible for FERPA is the Office of the Chief Privacy Officer, U.S. Department of Education. Accountability while enforced by the Office of the Chief Privacy Officer relies heavily on institutions determining whether they are or are not compliant. The only other form of accountability is through the filing of a written complain from parents or eligible students for alleged violations (34 CFR §99.63). Throughout my research I discovered a lack of accountability processes. There is no state agency with the authority to hold institutions accountable. All accountability rests in the hands of the Office of the Chief Privacy Officer, and any determination made following investigations into the alleged violations. Should institutions fail to comply with the findings of the Office of the Chief Privacy Officer the Secretary of Education can take any legally available enforcement action, not limited to issuing a cease and desist order or terminating eligibility to receive funds (34 CFR §99.67).

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Slide #3: State/Federal Constitutional Law 

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Slide #3: State/Federal Constitutional Law 

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The point of FERPA is to protect the privacy rights of students and parents. That power comes from the 4th Amendment of the U.S. Constitution, which

states that “the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated” (U.S. Const. amend. IV). Article 1 of the Texas Constitution says “the

people shall be secure in their persons, houses, papers and possessions, from all unreasonable seizures or searches” (Tex. Const. art. 1 §9)

The 4th Amendment establishes the right to privacy. This is essentially copied in the Texas Constitution in Article 1.

In an effort to make sure that institutions are not misusing student information FERPA was created.

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The Texas Education Code states that “ a written explanation of the provisions of the Family Educational Rights and Privacy Act of 1974, regarding the release of directory information about the student” shall be provided to all parents of students (Tex. Educ. Code §26.013). The Code of Federal Regulations states that FERPA “applies to

an educational agency or institution to which funds have been made available under any program administered by the Secretary [of Education]” (34 CFR §99).

Both of the statute found in the Texas Education Code and the administrative law found in the Code of Federal Regulations address two important aspects of FERPA.

The Code of Federal Regulations establish the institutions to which FERPA applies.

The Texas Code establishes how parents and eligible students need to be notified about what FERPA is and what is classified as directory information.

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In the Supreme Court case of Owasso v Falvo (2002) the court held that students serving as peer graders is not a violation of FERPA. Since students were not acting as agents of the institution and were functioning in their role as peer mentors then it was not a violation.

Owasso v Falvo: https://www.supremecourt.gov/opinions/boundvolumes/534bv.pdf

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The Family Educational Rights and Privacy Act is laid out in the Code of Federal Regulations. The Code of Federal Regulations defines to who the regulations apply, what the purpose is, what rights students are entitled to, and the accountability process for any alleged violations (34 CFR §99).

The regulations outlines the notice that must be provided to parents and eligible students.

The regulations outlines how to file a claim for alleged violations.

https://www.ecfr.gov/current/title-34/subtitle-A/part-99

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The Office of the Federal Register publishes documents on behalf of Federal agencies but does not have any authority over their programs. We recommend you directly contact the agency responsible for the content in question.

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West Texas A&M University, where I am currently employed has a policy regarding FERPA. The policy emphasizes that the purpose is to protect the accessibility to student records.

The policy defines directory information

It also establishes procedures for protecting student privacy

https://www.wtamu.edu/student-support/registrar/family-educational-rights-and-privacy-act-ferpa.html

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Pursuant to the Family Educational Rights and Privacy Act (FERPA), West Texas A&M University has established procedures relating to the accessibility of student information in the custody of the University.

Disclosure of Education Records and Directory Information

West Texas A&M University requires written consent of a student before disclosing personally identifiable information from that student's education records other than directory information and information requested for official use. Those who may obtain personally identifiable information may include:

1. WTAMU university officials with a legitimate educational interest

2. Officials of other schools where the student seeks or intends to enroll

3. Certain representatives of the federal government

4. State educational authorities

5. Governmental representatives in connection with financial aid for which a student has applied

6. Organizations conducting studies for or on behalf of educational institutions or agencies for testing purposes, student aid programs, and instructional improvement

7. Accrediting organizations

8. Those responsible for ensuring compliance with a judicial order

9. Appropriate parties in a health and/or safety emergency

*Education records are those records, files, documents, and other materials which:

1. Contain information directly related to a student and

2. Are maintained by an educational agency or institution.

Directory Information

Directory information means information contained in the education record of a student that would generally not be considered harmful or an invasion of privacy if disclosed. The following types of student information at WTAMU are considered "directory" for the purposes of this policy:

Name

Local and permanent address

WTAMU e-mail address

Telephone listing

Date and place of birth

Major field of study

Participation in officially recognized activities and sports

Weight and height of members of athletic teams

Dates of attendance

Enrollment status (e.g., undergraduate or graduate; full-time or part-time)

Classification

Degrees, awards, and honors received (including selection criteria)

Most previous school attended

To prohibit directory information from being disclosed the student must submit the Request to Prevent Disclosure of Directory Information form to the Office of the Registrar by 5pm of the Census Date for the semester. Check the Academic Calendar for Census Dates. The request to prevent disclosure remains in effect permanently or until the student chooses to remove the request to withhold directory information. The Request to Prevent Disclosure of Directory Information may be:

hand delivered

e-mailed as a pdf attachment to registrar@wtamu.edu

faxed to 806-651-4949

or mailed to: Registrar's Office, Box 60877. Canyon TX, 79016

Procedures for Protecting Student Privacy

FERPA applies to all education records regardless of the storage or delivery method. All University policies regarding student privacy and information security apply to students in all courses regardless of the mode of instruction (on-line, hybrid, classroom). All Faculty and staff are expected to follow certain procedures in protecting student information:

Use the University's email system - or Blackboard's communication system - for all official, confidential communication such as feedback on assignments, releasing grade information, responding to requests from students to provide information, etc.

Keep student information such as grades, important papers, transcripts, etc confidential. Computer monitors with information related to other students should be protected from public view and papers should not be left unattended or in easy view of others.

Do not share login information to university computer systems with anyone.

Follow FERPA and University guidelines for sharing educational record information with other faculty, staff, parents or others outside the University.

WHEN IN DOUBT, DON'T GIVE IT OUT!

Contact the Registrar (FERPA Compliance Officer) with questions.
Printable Resource: FERPA Basic Guide

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Family Educational Rights and Privacy Act (FERPA)

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Pursuant to the Family Educational Rights and Privacy Act (FERPA), West Texas A&M University has established procedures relating to the accessibility of student information in the custody of the University. West Texas A&M University requires written consent of a student before disclosing personally identifiable information from that student's education records other than directory information and information requested for official use.

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The ethical problem with FERPA as Greenberg (2018) so clearly puts it is that institutions are using FERPA as a scapegoat to prevent scandalous/newsworthy information from being shared despite student educational records having nothing to do with it.

Risk Acceptance is common place with FERPA. Institutions must assess the potential for a violation to occur and determine weather the repercussions of those violations are an acceptable enough risk.

Risk Avoidance is perhaps the strategy that leads to the idea the institutions use FERPA as a way to hide newsworthy. In order to avoid potentially committing a violation, institutions have participated in risk avoidance. They have created policies that severely limit the information that can be shared with others.

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The American College Personnel Association in the Statement of Ethical Principles & Standards( 2021) asks that students be treated with respect as people of dignity and worth. While that statement might not address the need to respect our students privacy, if we are treating them with dignity then they are inherently entitled to privacy. As a student affairs professional that is something that I abide by.

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The 4th Amendment and FERPA require me as an educator to protect the rights to privacy of my students. Both legally and ethically it is important protect their privacy, this will in turn allow me to create environments where students feel safe and protected. My goal as a current Res Life professional is to create spaces are safe, welcoming, and conducive to academic achievement.

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Slide #11: Best Practices for Compliance

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Slide #11: Best Practices for Compliance

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1. Institutions choosing to participate in risk avoidance need to continue to establish clear policies regarding their processes for releasing student information.

2. Continuous and on-going training needs to be done with employees to ensure that the release of student information is consistent. Training should be a routine matter and not just part of the on-boarding process.

3. Institutions should make sure to keep faculty/staff with access to educational records appraised of any changes to policy.

4. In an effort to increase transparency about the maintenance of educational records, institutions should make sure that everyone (students, faculty, staff, parents) are aware of who their FERPA Compliance Officer is.

5. Clear contact information and communication for the FERPA Compliance Officer should be readily available.

6. FERPA procedures and guidelines should align with ethical practices and standards, this will led to less conflicting values and less chances of alleged violations.