Education Records and Technology

1. Background?

   1. Education records, for institutions that receive federal funding, have privacy protections under U.S. law.

2. Why?

   1. Grades, disciplinary actions and other school information about a particular student deserve privacy protection.

3. What?

   1. Family Educational Rights and Privacy Act of 1974 (FERPA)

   2. Protection of Pupil Rights Amendment of 1978 (PPRA)

   3. FERPA is often referred to as the Buckley Amendment, in reference to Senator James Buckley, who supported its enactment.

9.1 An Overview of the Family Educational Rights and Privacy Act

1. FERPA

   1. Federal statute provides

      1. students with control over disclosure and access to their education records, also student email

   2. Scope

      1. Applies to all educational institutions that receive federal funding

      2. education Records - maintained by the school,

2. Education Record Exclusions

   1. the following records are not considered education records under FERPA:

      1. Campus police records created and maintained by school campus police for law enforcement purposes

      2. Employment records, when the employee is not a student at the university

      3. Treatment records or health records, subject to several requirements

      4. Applicant records of those who are not enrolled in the university

      5. Alumni records created by a school after the individual is no longer a student

      6. Grades on peer-graded papers, before they are collected and recorded by a faculty member or other university representative

      7. Students cannot use this opt-out to prevent the release of information that falls under a FERPA exception.

3. DOE PII Definition

4. Directory Information

   1. “Directory information” is broadly defined by FERPA to include information that would not generally be considered an invasion of privacy or harmful if disclosed.

   2. FERPA does not designate specific information types as directory information for every educational institution; rather, it rather allows individual educational institutions to create their own definitions based on lists of examples provided in the statute and rules laid down by the Department of Education.

   3. Before an educational institution can declare information directory information and begin using it as such, the institution must provide students with an opportunity to opt out, or block, the release of their directory information.

5. Disclosure

   1. Schools must use “reasonable methods” to verify the identity of the party to whom they disclose the information

   2. School is authorized to disclose personally identifiable information from an education record without student consent in the following cases

      1. Educational institutions in which a student seeks or intends to enroll, or is currently enrolled,

      2. information related to sex offenders and others when the information is provided to the school under federal registration and disclosure requirements.

      3. To a person or entity that is verified as the party that provided or created that record.

      4. In connection with financial aid that the student has received or for which the student will apply

      5. To appropriate parties in connection with a “health or safety emergency,”

   3. How?

      1. Consent Under FERPA. Valid student consent to disclosure must be signed (by hand or electronically), dated and written.

      2. Identifies

         1. The record(s) to be disclosed

         2. The purpose of disclosure

         3. To whom the disclosure is being made

6. Student Rights

   1. FERPA provides students with the right to access and review their education records.

   2. Students can request corrections to their education records if they believe the records to be inaccurate, misleading or in violation of their privacy.

      1. If the request is granted, the records must be corrected within a reasonable time (45 days)

9.2 FERPA and the Protection of Pupil Rights Amendment

1. FERPA ap vs PPRA

   1. FERPA

      1. applies only to information stored in education records

      2. Directly relates to a student

      3. Maintained by the educational institution or on behalf of the institution

   2. PPRA

      1. All other records (Email, Directories, )

      2. Why does this matter

         1. Institutions could use this information to sell student directory information to commercial entities such as banks or credit card companies, unless a parent or student opts out.

2. PPRA Rights to Parents for minors

   1. Political affiliations

   2. Mental and psychological problems potentially embarrassing to the student and his/her family

   3. Sex behavior and attitudes

   4. Illegal, antisocial, self-incriminating and demeaning behavior

   5. Critical appraisals of other individuals with whom respondents have close family relationships

   6. Legally recognized privileged or analogous relationships, such as those of lawyers, physicians and ministers

   7. Religious practices, affiliations or beliefs of the student or student’s parent Income

3. No Child Left Behind Act of 2001

   1. Broadened the PPRA to limit the collection and disclosure of student survey information

   2. The No Child Left Behind Act of 2001 contains a major amendment to PPRA that gives parents more rights with regard to

      1. The surveying of minor students

      2. The collection of information from students for marketing purposes

      3. Certain non-emergency medical examinations.

      4. In addition, an eight category of information (*) was added to the law.**

9.3 Interaction Between FERPA and the HIPAA Privacy Rule

Public school

Private School - No FERPA, not federally fundunded, FERPA

University - FERPA - student, HIPAA - not student (faculty/staff)

Treatment Records-FERPA exemption?

Institution

Provider/Patient

Privacy Rule

Public Elementary

Nurse/Student

FERPA (it’s public)

Public Secondary

Nurse/Student

FERPA (it’s public)

Post Secondary (non federal)

Read Footnote 10, 11, 42

1. HIPAA Enactment Concerns

   1. U.S. Department of Health and Human Services (HHS) to address in the Privacy Rule for HIPAA was whether schools would be covered.

   2. the final version of the HIPAA Rule exempted schools where educational records were already subject to the privacy regime of FERPA

2. Results

   1. the general rule is that health records are subject to FERPA—and not HIPAA

   2. Restrictions - Only where a public elementary or secondary school provides a nurse for student health issues

9.4 Education Technology

1. New technology changes in education.

   1. Online hosting of teaching material for students

   2. Online posting of homework assignments

   3. Online communication between teachers and students

   4. Online delivery of grades to students and parents.

   5. Costs - Many of these technologies are provided free to those in education settings.

2. Restrictions

   1. These technology company activities are subject to the laws discussed in this chapter

   2. Department of Education issued guidelines to provide assistance in explaining how FERPA applied in the online arena.

3. Self-regulation

   1. Companies are now a prominent source of privacy rules applied in the educational technology space.

9.5 Conclusion

1. FERPA/PPRA Protections

   1. U.S. law provides the major Fair Information Practice Principles related to education records that schools receiving federal funding must abide by.

2. Actions Required by Educational Institutions

   1. Must examine their practices to ensure compliance with these relatively detailed rules.