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Higher Education Policy and Practice

Protecting our Students in the Age of FERPA

In what is now becoming an all too familiar occurrence, there have been two more on-campus shooting incidents in the recent weeks. While it is too early to determine whether these latest incidents were preventable, other on-campus tragedies have resulted in many commentators questioning whether concerns regarding student privacy rights have outweighed student health and welfare interests. Such queries are perhaps justified as many schools have been reluctant in the past to release information without a student’s written permission, and rarely avail themselves to the exceptions allowed by the Family Educational Rights and Privacy Act (FERPA). In large part a school’s reluctance or failure to communicate critical information regarding a troubled student is either due to a misunderstanding or misinterpretation of FERPA. Those schools whose administrations, staff and faculty have a clear understanding of what the law really provides are best prepared to recognize when a credible threat exists and act accordingly.

While FERPA does indeed protect a student’s privacy, the law is limited to the disclosure of information from a student’s education records. FERPA does not prohibit the disclosure of information garnered from personal observations or interactions with a student. For example, if a college or university employee is concerned about a student’s well being or the public welfare based upon personal knowledge or observations, the employee can disclose that concern without fear of triggering FERPA. Realizing this, many proactive schools have begun training their employees to recognize potentially dangerous behavior and have created avenues for the reporting of such observations. Others schools have created alert teams comprised of administrators, campus safety personnel and counselors which meet regularly to discuss students exhibiting emotional problems. With adequate training, education and well placed policies and procedures, all campus employees, from custodians to administrative executives, can play an active role in making the campus a safer environment without fear of violating FERPA.

Even when information exhibiting a credible threat is part of a student’s records, FERPA permits schools to disclose personally identifiable information “to appropriate parties in connection with an emergency if knowledge of the information is necessary to protect the health or safety of the student or other individuals.” While this amendment is admittedly ill-defined, campus administrators should not use fear of FERPA-related litigation as an excuse not to act prudently when a credible threat exists that a student might harm himself or others. The key is good faith and appropriate response in light of the facts known at the time. Thus, if a student sends a threatening email to a professor which could reasonably be construed as posing a risk of serious harm to others, the professor should share the information with on-campus professionals trained to address such emergencies. The on-campus professionals can then determine whether further disclosure and/or action are warranted. In a best case scenario, the school will have a policy in place which explicitly details which professional(s) should be contacted.

Another exception to FERPA’s general prohibition against disclosure authorizes campus personnel to share information from student education records with other “school officials” who have “legitimate educational interests” in the information. Again, the act poorly defines who qualifies as a “school official” and what constitutes a “legitimate educational interest.” Recent guidance from the Family Policy Compliance Office (FPCO) offers some clarity. According to the FPCO model definition, a “school official” is:

  1. A person employed by the University in an administrative, supervisory, academic or research, or support staff position (including law enforcement unit personnel and health staff);
  2. A person or company with whom the University has contracted as its agent to provide a service instead of using University employees or officials (such as an attorney, auditor, or collection agent);
  3. A person serving on the Board of Trustees; or
  4. A student serving on an official committee, such as a disciplinary or grievance committee, or assisting another school official in performing his or her tasks.

The FPCO further notes that a school official has a legitimate educational interest “if the official needs to review an educational record in order to fulfill his or her professional responsibilities for the University.” Within these parameters, an employee concerned that a student’s actions suggest a credible threat should share the information the school official charged with the responsibility of addressing such matters. In our example above, the professor should provide a copy of the email to the appropriate campus professional.

Parental notification also can serve as an effective tool in addressing student health and safety needs. While FERPA generally prohibits parental disclosure without the student’s consent, there are two notable exceptions to the rule. The first exception permits parental disclosure if the college or university can confirm that the student is the parents’ dependent for federal tax purposes. The second allows privacy to be breached if the student is under 21 and has a drug or alcohol violation. If these two scenarios are not applicable, the school should seek the student’s consent and/or determine whether the behavior at issue triggers one of the exceptions to FERPA discussed earlier.

Given the recent on-campus incidents over the past few years, it is increasingly evident that colleges and universities must take a more proactive approach to observing and interceding with a troubled student. Despite privacy concerns to the contrary, FERPA does not serve as a significant obstacle to taking such a proactive approach. With a clear understanding of the parameters of FERPA and appropriately trained administrators, faculty and staff, colleges and universities are in a position to help avoid further tragedies.

Note: Other exceptions to FERPA exist and we urge administrators to review the act in its entirety. We also would be remiss is noting that additional restrictions may arise under applicable state or federal laws. Discuss these issues with your counsel.

Originally posted March 16, 2008

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