FERPA FAQ Relating to Use of SROs Issued to Encourage School Safety

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.

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When it comes to FERPA compliance, there are indeed many frequently asked questions.

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.

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.

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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.