The Great Wall of FERPA: Surmounting a Law's Barrier to Assurance of Learning

• Date: 01 January 2016
• Author: Henry Lowenstein
• Published date: 01 January 2016
• DOI: http://doi.org/10.1111/jlse.12037

Journal of Legal Studies Education

Volume 33, Issue 1, 129–164, Winter 2016

The Great Wall of FERPA:

Surmounting a Law’s Barrier

to Assurance of Learning

Henry Lowenstein∗

I. INTRODUCTION:PUBLIC POLICY CONCERNS:COST

AND LEARNING IN LEGAL STUDIES OF BUSINESS AND

HIGHER EDUCATION

Give a man a fish and you feed him for a day; teach a man to fish and you feed

him for a lifetime.

—Maimonides, Sephardic philosopher (1135–1204)

A RIDDLE . . . what do the academy’s goal of improving learning in the legal

environment of business, accreditation standards of assurance of learning and

an over forty-year-old federal privacy law have in common?

ANSWER: Combined, unintended consequences that contribute to the nonat-

tainment of learning and increased higher education costs.

This article analyzes such thesis. It suggests that one of the most direct and

effective means of ensuring student learning in the classroom is to provide

those paying the cost of higher education (be they parents, scholarships, or

government) timely and accurate information on student class attendance.

Our research suggests that institutional systems in partnership with tuition

∗Professor of Management and Law, Baxley Applied Business Professor, Coastal Carolina Uni-

versity. The author expresses grateful appreciation to Dr. Mark Mitchell, Chair and Professor

of Marketing, and, Dr. Michael Latta, Professor of Marketing at Coastal Carolina University for

their assistance in the conduct of this research.

C2016 The Author

Journal of Legal Studies Education C2016Academy of Legal Studies in Business

129

130 Vol. 33 / The Journal of Legal Studies Education

payers that assure student classroom presence for the education paid results

in higher learning outcomes and is a catalyst for better retention. This article

examines empirical research demonstrating the public policy and learning

impact. More importantly, this research demonstrates a significant bar to

the achievement of these ends is the unintended consequence of a federal

privacy law that has impeded the ability of college payers to receive and

recognize early warning signs of learning problems from absences and the

ability of higher education institutions to timely communicate to them before

problems reach a more serious, manifest level. To lay the foundation, the

article begins with background on the topic.

Collegiate schools of business play a significant role in the environment

and context of higher education in America. These institutions are central

to the development of future business, government, and nonprofit man-

agers/administrators who create employment opportunities, and direct the

future wealth of nations and their citizenry—conduct that inures to the social

and economic well-being, ethics, and risks within society. Of the 1,716,000

bachelor’s degrees conferred in 2010–2011, the greatest numbers of degrees

were conferred in the fields of business (365,000).1This figure represents

21.3% of all U.S. undergraduate degrees granted. National focus on college

education access and cost has also drawn attention to the quality of learning

outcomes received by collegiate students.2

Learning outcomes have been a major concern of business school ac-

creditation known as Assurance of Learning (AOL), by the Association to Ad-

vance Collegiate Schools of Business International (AACSB International),

the major accreditor of business schools in the United States and worldwide.

AOL standards were established to assure students were learning the neces-

sary skills in business for the often high tuition and costs paid. Consequently,

AACSB has included this mandate in its standards since 1991.3

1Fast Facts, Institute of Education Sciences, NAT.CTR.EDUC.STAT., https://nces.ed.gov/

fastfacts/display.asp?id=37 (last visited Apr. 29, 2015).

2Public frustration has led to legislatures attempting broad statutory solutions such as man-

dating faculty to teach more classes. Karen Herzog, North Carolina Lawmakers Considering

Requiring Professors to Teach 8 Courses,M

ILWAUKEE J. SENTINEL (Apr. 28, 2015), available at

http://www.jsonline.com/blogs/news/301566981.html.

3“The AOL standards support two principles which are the foundation of AACSB accredita-

tion, accountability and continuous improvement. In terms of accountability, ‘ .. . Measures of

learning can assure external constituents such as potential students, trustees, public officials,

supporters, and accreditors, that the organization meets its goals’ (In terms of continuous

2016 / The Great Wall of FERPA 131

True, solving the student learning dilemma is a complex multidimen-

sional problem that will require many strategies and solutions. One single

magic solution may not exist; rather, problems will be solved by a series of

policy and legal improvement steps. Incremental solutions, collectively, may

have a manifest positive impact. As said in the old aphorism, “each snowflake

in an avalanche pleads not guilty!”4

This research suggests one novel legal solution that would provide sub-

stantial public benefits, that is, a discrete change in one statute, the Fam-

ily Educational Rights and Privacy Act (FERPA) of 1974.5Such statutory

modification would result in a significant improvement in college student

attendance resulting in better assurance of student learning outcomes with-

out major bureaucracy and cost impositions for universities or government

agencies. At the margin these improvements may well enhance institutional

retention.

The essence of the proposed change would be to convert the right of

privacy to college grades and attendance records from an age-basis to that of a

college cost-payer basis. The focus here is to allow those third parties paying the

cost of college to see in real time the use (or nonuse) of the education oppor-

tunity purchased (in this case the student being the third-party beneficiary).

Such a change would provide a self-enforcement mechanism by those who

pay rather than creating proxy methods that pace the duty of enforcement,

cost, productivity, and burden on institutions as exists today. In a sense, it

returns us to the pre-1974 condition by which families, employers, govern-

ment support agencies, and foundations monitored the progress of college

students for which they provided direct financial support.

The article begins with a brief review of the overall cost and learning

problem confronted in the United States and the relative cost and learning

improvement, ‘ . . . By measuring learning the school can evaluate its students’ success at achiev-

ing learning goals, can use the measures to plan improvement efforts, and (depending on

the type of measures) can provide feedback and guidance for individual students.’” (internal

references omitted). AACSB International Accreditation Coordinating Committee, and, Accred-

itation Quality Committee, Assurance of Learning Standards: An Interpretation,AACSB W HITEPAPER

No. 3 (May 3, 2013), http://www.aacsb.edu//media/AACSB/Publications/white-papers/wp-

assurance-of-learning-standards.ashx, at 3.

4Quotation #22258 from Rand Lindsly’s Quotations,THE QUOTATIONS PAGE, http://www.

quotationspage.com/quote/22258.html (last visited Oct. 26, 2015): The quotation is attributed

to the Polish author, Stanislaw J. Lec (1909–66).

520 U.S.C. §1232g (2015); the accompanying regulations are codified at 34 C.F.R. §§ 99.1–91.67

(2015).