Legal Issues: Spotlight Online
Supreme Court Decisions Address FERPA
There have been few court decisions regarding the Family Education Rights and Privacy Act (FERPA) since its passage in 1974. However, the U.S. Supreme Court issued two decisions this year within four months of each other involving alleged violations of the law, which prohibits the release of a student's education records without the consent of the student or the student's parent (if the student is a minor).
The first case, Owasso Independent School District v. Kristja Falvo, involved the practice of "peer grading"—students grading each other's assignments as the teacher provided the correct answers. The question before the Court was whether the assignment and resulting grade should be considered an "education record" maintained by the school. The Court responded unanimously that neither the assignment nor the grade constituted an education record. Therefore, the disclosure of grades that occurs in the course of peer grading is not unlawful.
The relevance of the decision to career services professionals is in the Court's discussion of the term "education record." FERPA defines an "education record" as "records, files, documents, and other materials" containing information directly related to a student that "are maintained by an educational agency or institution or by a person acting for such agency or institution."
The Court noted that the word "maintained" suggests that the record is kept in a "filing cabinet in a records room at the school" or on a "permanent secure data base." Moreover, the Court stated, "By describing a school official and his assistant as the personnel responsible for the custody of records, FERPA implies that education records are institutional records kept by a single central custodian such as a registrar, not individual assignments handled by many student graders in the classrooms." Nor are the student graders "acting for" the school when they place a grade on the paper.
If a student assignment is not considered an education record because it was created and controlled by the student, does that hold true for student-created resumes? In other words, how should career services treat resumes that are stored in electronic data bases and disclosed to employers electronically? Is signed written consent necessary prior to disclosure or can the resume be disclosed without this form of consent?
In light of the Court's decision, some view education records as only those records that are controlled and maintained by the university and have an element of permanency. They reason that since a resume is created and changed at the discretion of the student, it is not an education record even if it is stored in the school's data base. They also assert that if the resume does not contain any personally identifiable information such as GPA, the disclosure requirements of FERPA are not applicable.
Others, however, say there is no difference between storing a student's resume in an electronic format or in a file cabinet. They contend that if the student-created resume was considered an education record on paper, shouldn't it remain so online? Although the Supreme Court specifically mentioned records that are maintained on a "permanent secure database," it did not address the handling of the student-created record once the school stores it.
The Supreme Court's second decision on FERPA, Gonzaga University v. Doe (see also Spotlight July 2, 2001) addresses the question of whether a student can bring a lawsuit for money damages against a school that violates FERPA. The Court, in a 7-2 decision, held that FERPA does not give individual students (or their parents) the right to sue the school if the school discloses confidential student information without the student's/parent's consent.
The case involved a lawsuit filed by a former student who charged that he was unable to get a teaching job because a school official told the state's teacher certification office that he had been accused of sexually assaulting another student. The student claimed a violation of his FERPA rights as well as negligence and defamation. The lower court awarded the student monetary damages in the amount of $1.15 million dollars, $450,000 of which were for violations of FERPA. After the State Supreme Court upheld the award, the school appealed the FERPA award to the U.S. Supreme Court.
FERPA provides that "No funds shall be made available…to any educational…institution which has a policy or practice of permitting the release of education records (or personally identifiable information contained therein…)" without the written consent of students or their parents "to any individual, agency, or organization." In adopting the law, the Court said that members of Congress intended for the U.S. Secretary of Education to enforce its privacy provision by withholding federal funds to non-compliant institutions. According to the Court, FERPA does not contain any "rights-creating language" giving students (or parents) the ability to sue institutions that release confidential information without permission. Because the provisions speak only in terms of institutional policy and practice, not individual instances of disclosure, they do not provide grounds for individuals to sue educational institutions over specific disclosures.
Consequently, if a student believes that his/her education record and/or personally identifiable information has been disclosed without consent, his/her only recourse under FERPA is to file a complaint with the Secretary of Education. The Secretary of Education will then conduct an investigation and determine if there is a violation of FERPA. A school's federal funding—including federal student financial aid—can be terminated if the Secretary of Education finds that a violation has occurred. However, a student can bring a lawsuit for defamation or invasion of privacy under state law if the disclosure caused the student harm.
Career services professionals who would like to forgo signed written consent, as a condition to disclosure of resumes or other student information, should review this policy change with their university counsel. In light of the recent Supreme Court decisions regarding FERPA, caution clearly outweighs convenience.
Spotlight, Volume 25 Issue 1, August 1, 2002
