Some controversial new FERPA regulations are set to take effect on Jan. 8th. FERPA stands for the Family Educational Rights and Privacy Act and in schools, both K-12 and higher ed., it is the set of regulations that govern how student information is released. The Act authorizes the Department of Education to pass regulations clarifying the details of the law and it is under that authority that the DOE is releasing these new regulations, which the Wall Street Journal called the most sweeping update in twenty years.
NSBA's LegalClips sums up the provisions in the new regulations thusly:
The final regulations clarify permissible disclosures to parents of eligible students and conditions that apply to disclosures in health and safety emergencies; clarify permissible disclosures of student identifiers as directory information; allow disclosures to contractors and other outside parties in connection with the outsourcing of institutional services and functions; revise the definitions of attendance, disclosure, education records, personally identifiable information, and other key terms; clarify permissible redisclosures by state and federal officials; and update investigation and enforcement provisions.
The Student Press Law Center has come out with a harsh criticism of the new regulations as unduly limiting the public's ability to get information about the performance of schools and students. But, having read some of the details on this, I just don't see that much wrong with these amendments. I think the expansion in the definition of personally identifiable information is not that much different from the original. The new language is essentially whether a "reasonable person in the school community" could identify the student in the educational record "with reasonable certainty." That doesn't strike me as an unreasonable definition, but I would agree that it is likely to make school officials even more restrictive in the types of information they allow the public to see. As the SPLC notes, simple redacting may not be enough anymore under these regulations ... but I don't really see the problem with that. Perhaps you disagree, but I don't really have a problem with the regulations privileging privacy over accountability, which is what the SPLC complains about.
Undoubtedly there is a lot of misinformation out there about FERPA and it is one of the least understood of the federal laws that apply to education. These new regulations surely do not help that as much of the new regulatory structure is adding additional requirements on schools. For instance, if a school wants to contract with an outside evaluator to run some of the school's data, there is a whole new set of procedures to assure the outside evaluator treats the student information correctly. Additionally, these regulations require new paperwork between schools and researchers that are using student data. So, I don't really see anything in these regulations that are going to make this easier to understand for school officials. But, I also don't see anything in the regulations that strike me as inappropriate. Most of the changes seem to make some sense. The DOE even incorporated the Supreme Court's ruling in Owasso. Overall, I don't see anything that is going to be too difficult for schools to deal with. But, feel free to disagree in the comments section.
Here is the DOE's Dear Colleague Letter on this.
Also, the Gadfly has some good links on this.
h/t Scott McLeod