Department Issues Proposed FERPA Regulations

The Department of Education has issued a number of proposed changes in the regulations governing the Family Educational Rights and Privacy Act (FERPA).

The proposals, published on March 24, deal with a number of FERPA-related questions - most notably clarification of the information that institutions may share with parents and other parties. Last year's Virginia Tech tragedy brought to light the widespread confusion about what is and is not allowed under FERPA. As explained in the preamble to the proposed regulations:

In making a determination under paragraph (a) of this section [regarding the determination of a health or safety emergency], an educational agency or institution may take into account the totality of the circumstances pertaining to a threat to the safety or health of a student or other individuals. If the educational agency or institution determines that there is articulable and significant threat to the health or safety of a student or other individuals, it may disclose information from education records to any person whose knowledge of the information is necessary to protect the health and safety of the student or other individuals. If, based on the information available at the time of the determination, there is a rational basis for the determination, the Department will not substitute its judgment for that of the educational agency or institution in evaluating the circumstances and making its determination. [Federal Register, March 24, 2004, p. 15589]

A comparison of current and proposed regulations dealing with disclosures in health and safety emergencies is shown in the accompanying box.

The proposed regulations also would:

1. make it easier to disclose education records for the audit, evaluation, compliance or enforcement of K-16 programs in cases where such activities are specifically authorized by Federal, State, or local law;
   
2. prohibit the disclosure or confirmation of a student's directory information without the student's prior written consent if a Social Security number or other non-directory information is used to identify the student - a practice that has been used by some institutions and vendors to confirm things such as a student's attendance or receipt of a degree at an institution; and
   
3. address a variety of issues that have arisen since the regulations were last revised, including implementation of FERPA amendments made by the USA Patriot Act and by the Campus Sex Crimes Prevention Act, as well as the Owasso and Gonzaga U.S. Supreme Court decisions.

The public comment period will close on May 8, 2008. Comments may be submitted through the Federal eRulemaking Portal (go to www.regulations.gov and place the Docket ID [ED-2008-OPEPD-0002] in the "Search" box) or by mail to LeRoy S. Rooker, U.S. Department of Education, 400 Maryland Avenue, SW, Room 6W243, Washington, D.C. 20202-5920.

For more information, please contact:
Tim Powers