New Year, New Guidance on FERPA Complaint Processing

It is a brand new year and I bet you the thing that you are most excited about in 2019 is cutting edge legal analysis on FERPA! Okay, so I’m probably wrong about that, but you have to admit that FERPA is pretty important. As most of you know, FERPA, the Family Educational Rights and Privacy Act, is a Federal law that protects the privacy rights of student education records and protects most records contained in a student’s file, from grades to test scores, special educational plans, evaluations, and more. See 20 U.S.C. Section 1232g; 34 CFR part 99. This statute broadly applies to educational institutions at the K-12 level beyond.

homework paper pen person
FERPA applies to most records maintained in a student’s file, including homework, tests, and correspondence if they contain personally identifiable information.

You may be aware that there is no private right of action to enforce FERPA violations civilly, so the primary enforcement mechanism is a complaint to the Family Policy Compliance Office. See 34 CFR 99.63. Historically, the FCPO has followed the practice of investigating all timely complaints filed pursuant to this provision. Just in time for the new year, however, the United States Department of Education issued new guidance regarding the exercise of the FCPO’s enforcement authority under 34 CFR 99.64 going forward.

Under subsection B of that provision, the FCPO is authorized to “investigate” and find violations of FERPA’s provisions upon the filing of a formal complaint or on its own initiative. Yet, in the guidance letter issued last month, the Department interpreted this language to merely authorize an investigation where appropriate but not require it in all cases. In other words, 34 CFR 99.64(b) gives the FCPO discretion to determine how to respond to a complaint and whether to open a formal investigation.

The Department explained that this change is necessary because many FERPA complaints involve inadvertent disclosures, which don’t require a formal investigation. As such, the Department felt that its guidance giving the FPCO discretion to determine when an investigation was necessary could better empower the office to timely respond to complaints and assist educational institutions improve policies and practices to ensure the privacy of student education records.

Overall, the Department’s interpretation is a reasonable approach to help manage the FPCO’s enforcement authority to better respond to complaints and proactively encourage educational institutions to protect student privacy. Since this is a departure from the Office’s past interpretation of its enforcement authority, however, it remains to be seen what practical impact the Department’s new guidance will have.

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