An Examination and Analysis of the Family Educational Rights and Privacy Act of 1974

The Family Educational Rights and Privacy Act (FERPA) of 1974 is fundamental in protecting the right to privacy of students within the United States. The act prevents schools from distributing students’ information to other parties, except in limited circumstances, without the explicit knowledge and consent of the parent (if the student is under 18) or the student (if in post-secondary education). Since its implementation in 1974, FERPA has not had any major changes, which is reflected in the current struggles to maintain compliance with the act but also to meet the demands of a changing nation. This paper examines the reasons behind, implementation, and consequences of FERPA as well as possible actions for future changes to the policy.

Background

In 1973, James L. Buckley, a Conservative Senator from New York, introduced the Family Educational Rights and Privacy Act (FERPA) to the House of Representatives, as an Amendment to the General Education Provisions Act (GEPA). FERPA passed the House in January of 1973 and the Senate in February of 1974, it was then signed in August of 1974 by President Gerald Ford. The act, also known as the Buckley Amendment, was an answer to concerned parents calls for better control over and privacy of their children’s educational records.

The major aspects of FERPA include parents having access to their children’s records, the ability to pursue amendment of the records, and a level of control over access and control of the records. These guidelines apply to any institution that accepts federal government funding and/or grants (von Feigenblatt, Valles, & Dominguez, 2015). Educational records can include, but are not limited to: birth records; parental information; grades, classes, and test scores; disciplinary records; medical records; attendance records; schools attended; and student identification information (Toglia, 2017).

There is not much legislative history for FERPA, excluding that of the amendments made to the act, as it circumvented committee considerations which are traditionally observed when considering amendments to be made to previously passed acts, such as GEPA (Dunphy, 2017). Due in part to the tumultuous legislative period in which the act was passed and the lack of online-accessible archival records, the House records having only records from the 1990s to present and the Senate the 1980s to present, the support, opposition, and debate of the act is in part unknown without more in-depth research (Weeks, 2001).

Market Failures, Public Goods, and Externalities Behind the Policy

One of the driving factors behind the creation of FERPA was a lack of a standardized format for handling the data of students, from primary education to post-secondary education, by schools. Concern arose from parents and the public as to how the information held on students was being handled by educational institutions. Education records could be utilized schools and colleges to evaluate students in regards to “their character, their aptitude, and their job prospects” (von Feigenblatt, Valles, & Dominguez, 2015).

Senator Buckley noted that there had been multiple instances which violated privacy of students, and parents, including unqualified psychological assessments and personal opinions within children’s official education records (Weeks, 2001). There were also instances of student’s personal information being given to institutions and individuals who had no need or reason for the material.

Aside from a desire to increase privacy of records, Senator Buckley’s other goals with the amendment were to give parents (and students) more access and control over their records. Buckley’s main argument for this was, for primary and secondary education, parents are and should be involved in the education of their children (Weeks, 2001). This involvement includes the need to understand where their child is (in terms of grades) and how their student is doing, such as through statements about the child’s behavior from teachers.

Political and Economic Factors in the Design of FERPA

The major political factors behind the creation of FERPA were the demand of constituents, namely parents, concern over the right to privacy. In addition to the child’s educational information in these records, there is also personal information. This additional data includes birthdates, addresses, and information on the parents/guardians themselves. The 1970s was also when computers, and therefore data, were becoming more and more popular, revealing just how crucial it was to ensure privacy.

The main economic concerns of FERPA are held by colleges and corporations. Colleges rely on student information in order to track progress, determine student rankings, determine college rankings, and to determine who can be admitted to the school. The admission of students to the college is one of the more important factors on the list as it determines the schools funding and possible federal grants and other money distributed to schools. In regards to the need for corporations to have access to students’ records, employers want to know the student’s work ethic (either through the distribution of their grades or through either personal or clinical reflections from teachers and health professionals).

Implementation

The legislative history of the Buckley Amendment is different to most, as Senator Buckley introduced the legislation directly to the Senate, ignoring the standard procedure of presenting it to committees. These committees allow for “interested parties to address the legislation and their concerns” (Weeks, 2001). Following November 1974, when the act came into effect, a multitude of people came forward with complaints not only of how the legislation circumvented the process, but also concerns as to the contents of the act.

Therefore, the nine amendments that have been introduced following the creation of FERPA, are key in understanding its contents and demonstrate how FERPA has adapted to changes in the political environment. The two major parts of the original amendment, in December of 1974, were those in regards to dependent students and disclosure to parents and the disclosure of safety and health information (Weeks, 2001). The last amendment made to FERPA was in 2001 and was part of the Patriot Act, which allowed for universities to share more information on students with security agencies (von Feigenblatt, Valles, & Dominguez, 2015).

What Worked and Didn’t Work and Who Won and Lost

The major success of FERPA was that it increased the right to privacy of students in federally funded or federally supported schools. Schools could no longer disseminate students’ information without the consent of the parent (if under 18) or the student themselves. This prevents colleges, universities, and companies from making decisions on students without the knowledge of the parents and students that these institutions are making a decision based on provided information.

While initially a success, following the first amendments to the initial act, in the past decade and a half faults in FERPA have come to light. Some of these faults were inevitable through no part of the initial legislation, as these problems have only been revealed with the advancement of technology: big data and cloud sharing. The major issue currently in regards to FERPA, is that of sexual assault on college campuses: how to handle Title IX cases while still following FERPA guidelines.

Though computers were present in the 1970s when FERPA was first enacted, the internet did not come about until the next decade and only really became accessible to everyone in the early 2000s. As the last amendment to FERPA was in 2001, there has not been much consideration for the rising concern of big data and online collaboration. As more and more schools offer online classes or alternatives as well as store student data on online servers and databases, the chance of accidental sharing or theft of the data is possible (Schrameyer, Graves, Hua, & Brandt, 2016). This may be interpreted as contrary to the stipulation in FERPA that the data be stored in a secure location.

The major issue with FERPA and Title IX is the right to due process. However, it is also noted that when credibly charged, is difficult for law enforcement to access records of the accused without a subpoena, for which substantial evidence is needed (Bolla, 2019). Not often examined at the federal level, some Circuit and state courts have determined that disciplinary records are not considered to be part of the education records of students, and thus are not subject to protection under FERPA (Bolla, 2019). This does vary by court, as in some instances, the disciplinary record has been considered part of the student’s education record and therefore protected. FERPA allows for appropriate information, or does not expressly prohibit, to be disclosed as it is related to disciplinary action for a violation of the school’s community, other students, or the individual themselves. In addition, should certain requirements be met, the information in regards to the disciplinary hearing can be made public. There are exceptions to where the sharing of a student’s record is not made known to the parent or the student. Such an instance is if the record is requested by an administrator or member of the institution at which the student is located.

Future Policy Recommendations

FERPA was first written in 1973 and though it has been amended a total of nine times since it was created, recent developments have led to the observance of obvious faults within the policy’s core. big data, cloud services, state legislature, Title IX, and other problems show that FERPA’s broad statements and definitions no longer are satisfactory in keeping of the privacy of student’s records.

In regards to big data (and in part, cloud services), my suggestion would be for the Department of Education’s Institute of Education Sciences to conduct research into policies that would support student’s right to privacy, but supplement the growing want of data analysis. The end goal of this would in part be a compromise, the student’s data would be accessed, but their privacy not compromised; perhaps, like a Social Security number, students are given universal student IDs, where access to the student’s complete information is only given in rare circumstance.

Congress should examine and better define how FERPA should be interpreted and implemented at the state level. As seen in recent years, state laws have in some cases superseded that of FERPA, mainly through the legal loopholes left by the act’s broad terminology. Most commonly, the challenges made to FERPA have been in the case of Public Information Acts, at the state level.

The relationship of FERPA and Title IX should also be closely studied, as sexual assault cases are incredibly severe and when brought to the attention of schools, should be taken seriously. However, with there also being false claims made in regards to sexual assault, the private information of the accuser and the accused should remain as private as possible. Given a credible case, the definition of which would need further expansion, what to do with the information of the accused who has been found guilty needs to be determined. That is, should it be released to other schools or institutions should the accused be released and pursue further education, without the consent or knowledge of the accused.

Conclusion

An important piece of legislation, the Family Educational Rights and Privacy act is fundamental in the American education system. FERPA allows for peace of mind to parents and students that their records are not being disclosed to those that should not have the records without permission and that should there be major errors to the records, they can be corrected with the correct procedures. However, given revelations (long standing or recent) there is need for change to parts of FERPA in regards to online data and especially sexual assault and Title IX cases.

References