The Family Educational Rights & Privacy Act of 1974: Recommendations for Realigning Educational Privacy With Congress' Original Intent

• Publication year: 2022

41 Creighton L. Rev. 277. THE FAMILY EDUCATIONAL RIGHTS & PRIVACY ACT OF 1974: RECOMMENDATIONS FOR REALIGNING EDUCATIONAL PRIVACY WITH CONGRESS' ORIGINAL INTENT

Creighton Law Review

Vol. 41

I. INTRODUCTION

In the early twentieth century, the United States Supreme Court first acknowledged an individual's right to make private decisions, including educational decisions, in the realm of the individual's personal life.(fn1) The Supreme Court, in cases such as Meyer v. Nebraska(fn2) and Pierce v. Society of Sisters,(fn3) recognized educational choices in an individual's private life as constitutionally protected and aided in the development of the right to privacy.(fn4) The Court's decisions in these cases were important to the increased recognition of a right to privacy.(fn5)

In 1974, the U.S. Congress enacted the Family Educational Rights and Privacy Act of 1974 ("FERPA").(fn6) Prior to FERPA's enactment, evidence showed a rising number of abuses of student education records in the United States.(fn7) As a direct result of these student record abuses, thousands of angry parents and students inundated public policy groups, such as the American Civil Liberties Union and the Russell Sage Foundation, with letters detailing anecdotal abuses regarding how schools maintained and allowed access to student records.(fn8) The Russell Sage Foundation conducted a survey of educational institution record keeping practices and found restrictions to education records access typically covered only student attendance, grades, and standardized test scores.(fn9) The survey found that less than ten percent of surveyed schools allowed parents access to their student's education records.(fn10) Conversely, many schools made ad hoc exceptions that allowed the schools to disclose student records to a myriad of outside organizations.(fn11) The survey found that when the New York City School District ceased to release student information, at least twenty-eight unique categories of outsiders contacted the school district to complain about losing an important information source.(fn12) Consequently, this atmosphere of readily accessible education records led Congress to enact FERPA.(fn13) By enacting FERPA, Congress sought to give parents and students access to education records, as well as to protect individual privacy.(fn14) Subsequently, however, the courts and Congress have increasingly interpreted and amended FERPA in ways that have weakened the protections FERPA originally afforded education records.(fn15)

This Note discusses the current state of FERPA in three sections.(fn16) First, this Note examines FERPA's statutory text, legislative history and initial amendments, as well as important interpretive federal case law.(fn17) Next, this Note advances the argument that Congress should amend FERPA to realign it with the protections Congress originally intended.(fn18) Primarily, this Note will suggest amending FERPA's definition of education records to make more certain what types of information FERPA protects.(fn19) Secondarily, this Note will suggest reformations to allow individuals to file lawsuits against educational institutions for FERPA violations.(fn20) Finally, this Note will conclude with a brief summary of the recommended FERPA amendments.(fn21)

II. BACKGROUND

A. CURRENT FERPA PROVISIONS REGARDING RIGHTS PROVIDED TO PARENTS AND ELIGIBLE STUDENTS

Congress enacted the Family Educational Rights and Privacy Act of 1974 ("FERPA")(fn22) pursuant to its spending power under Article I of the U.S. Constitution.(fn23) FERPA provides several rights to students and their parents with regard to education records.(fn24) Prominent among these rights are provisions allowing parents to view their student's education records.(fn25) FERPA also allows parents to challenge, correct, and delete misleading, inaccurate, or inappropriate information in their student's education records.(fn26) Further, there are provisions preventing educational institutions from releasing education records without consent.(fn27) Additionally, there are provisions that transfer the same rights of the parents to students who are eighteen years old or older, or who are attending a postsecondary educational institution.(fn28)

In addition, FERPA requires any educational institutions that maintain education records to provide notice to parents and eligible students of their respective rights under FERPA.(fn29) If a parent or eligible student believes an educational institution has violated a FERPA provision, the parent or eligible student may file a complaint with the Family Policy Compliance Office.(fn30) If an educational institution has not complied with FERPA, the Secretary of Education shall take actions to secure the institution's compliance by withholding payment of government education funds, issuing a complaint against the offending institution seeking the institution's compliance, or terminating the eligibility of the institution to receive government education funds.(fn31)

FERPA defines education records as: "those records, files, documents, and other materials which - (i) contain information directly related to a student; and (ii) are maintained by an educational agency or institution or by a person acting for such agency or institution."(fn32) FERPA contains several exceptions for types of documents that do not constitute an education record.(fn33) Specifically, these exceptions include confidential record books, such as a teacher's grade book, provided the record keeper kept the book's contents confidential from other people; law enforcement records maintained by law enforcement units connected with a school; school employees' employment records; and files used for medical or psychiatric treatment by recognized professionals at postsecondary education institutions.(fn34) An educational institution that either refuses a parent or eligible student access to these non-education records or divulges such information to others without a parent or eligible student's consent has not violated FERPA because the information does not qualify as an education record.(fn35)

Some types of information educational institutions maintain, which may appear to qualify as education records, may be divulged without written consent of a parent or eligible student.(fn36) Specifically, FERPA allows institutions to disclose student information that is directory information if (1) the educational institution has given public notice to parents and eligible students of what the institution considers to be directory information, and (2) the educational institution makes directory information public.(fn37) Congress included the directory information exception in order to create procedures for institutions to disclose generally non-private student information without fear of losing federal education funding.(fn38)

Directory information includes a student's name, address, telephone number, date and location of birth, field of study, extracurricular activities, athletic team member physical information, attendance dates, degrees received, and previous schools attended.(fn39) FERPA allows parents and eligible students to opt out of disclosing directory information if the parents or eligible students contact the educational institution within a reasonable amount of time after receiving the public notice.(fn40) Neither FERPA, nor the administrative code interpreting FERPA, provide direction on what qualifies as a reasonable amount of time.(fn41)

Additionally, FERPA provides a specific definition for who qualifies as a student under the statute.(fn42) A student is any person for whom an educational institution keeps "records or personally identifiable information," as long as the person has attended the educational institution.(fn43) FERPA does not consider people who have not attended the educational institution, such as school applicants, to be students.(fn44)

B. FERPA'S LEGISLATIVE HISTORY, ENACTMENT, CONGRESSIONAL INTENT, AND THE BUCKLEY/PELL AMENDMENT

President Gerald R. Ford signed FERPA into law on August 21, 1974, as part of the General Education Provisions Act(fn45) entitled "Pro-tection of the Rights and Privacy of Parents and Students."(fn46) FERPA became effective on November 19, 1974, ninety days after its enactment.(fn47) Prior to enactment, FERPA's journey to becoming law started as a hastily created amendment on the floor of the U.S. Senate and not through typical legislative channels.(fn48)

Due to FERPA's atypical creation, FERPA did not contain the common forms of legislative history found with most congressional enactments, such as hearings or committee reports.(fn49) Because of the lack of congressional direction, the Department of Health, Education, and Welfare, which had the responsibility of implementing FERPA, found many ambiguities in FERPA's original text.(fn50) The ambiguities in FERPA's original text led Senators James Buckley and Claiborne Pell to enter a joint statement in the Congressional Record four months after FERPA's enactment, seeking to clarify FERPA's intent and to amend FERPA's text to make Congress' intent clearer.(fn51) The joint statement was reflected in the Buckley/Pell Amendment, which Congress enacted on December 31, 1974.(fn52)

The Buckley/Pell Amendment sought to specifically define FERPA's two-fold policy goals.(fn53) First, FERPA sought to protect individual privacy by preventing...