School safety is always a top priority for schoool officials. Due to recent acts of gun violence in American schools, however, it is also a top priority for elected officials and government agencies. Here in the Sixth Circuit, Kentucky, Michigan, Ohio, and Tennessee have passed or entertained legislative and funding tools aimed at making schools safer. At the federal level, the Federal Commission on School Safety released a report late last year with recommendations for improving school safety. While the Commission included numerous recommendations within its 180-page report, some of its suggestions included clarifying FERPA or even updating its language.
As of yet, the divided Congress has not taken action to update FERPA as the Commission has urged. On the other hand, the Privacy Technical Assistance Center within the United States Department of Education has issued a FAQ guidance document relating to FERPA. In particular, the document is intended to clarify the manner in which FERPA applies to school resource officers (“SROs”) and school law enforcement units.
The PTAC’s guidance document contains answers to 37 questions relating to FERPA implementation which may affect school safety decisions, including:
- Can law enforcement unit officials who are off-duty police officers or SROs be considered school officials under FERPA and, therefore, have access to students’ education records?
- Does FERPA permit schools and districts to disclose education records, without consent, to outside law-enforcement officials who serve on a school’s threat assessment team?
- When is it permissible for schools or districts to disclose student education records under FERPA’s health or safety emergency exception?
- Does FERPA permit school officials to release information that they personally observed or of which they have personal knowledge?
FERPA is a complex law and issues relating to student privacy arise frequently. Further, these issues are, as School Safety Commission found, compounded by constantly evolving technological issues in the school setting. Guidance as to the implementation of FERPA at the local level is therefore welcome. Whether these measures will be sufficient to address broader issues relating to school safety in general or gun violence in particular, however, remains to be seen.