Faculty Legal Issues: FERPA

1. Faculty Legal Issues: FERPA Larry Barkoff Assistant General Counsel

2. FERPA(Family Educational Rightsand Privacy Act of 1974)

3. Overview • FERPA (Family Educational Rights and Privacy Act of 1974) governs and protects students’ educational records. • FERPA grants students the right to access their own educational records as well as limiting, for privacy reasons, the release of those same records to anyone other than the student and/or the student’s designee. FERPA applies to all current and former students of the University. It does not apply to applicants.

4. Rights Under FERPA • Affords students the right to… • Review and inspect their records within 45 days • Seek to amend or correct their records • Control disclosure of certain records and/or parts of records (i.e. personally identifiable information – info that would directly identify the student or make it easy to trace the student’s identity) • File complaints with the DOE’s Family Policy Complaint Office (FPCO)

5. What are Educational Records? • Any information maintained by the University, in any medium, that is directly related to the student. • YES – Name of Student or family members, Address, Any Unique Characteristic that would identify student, Grades, Test Scores, ID Numbers, Social Security Numbers, Financial Records, Class Schedule, Disciplinary Records • NO – Personal Notes made by faculty/staff, Employment Records, Law Enforcement Records, Financial Records of Spouse or Parent, Confidential Letters of Recommendation Placed in Student’s filed before 1/1/1975 or after that date if student waives right to see them, Medical or Counseling Records Used Solely in Treatment, Alumni Records

6. Directory vs Non-Directory Info • Directory information is designated by EMU; may be released without permission unless student requests that any/all of it stay private. • EMU has designated the following as Directory Information • Name Address Telephone number E-mail address Date and place of birth Major field of study Participation in recognized activities and sports; Weight and height of members of athletic teams Dates of attendanceEnrollment Status Degrees and awards received (inc., but not limited to, the Dean's List) Previous educational agency or institution attended.

7. Directory vs Non-Directory Info • Non-Directory information must not be disclosed to anyone, including parents, without prior written consent of the student unless the discloser falls under one of the exceptions found in FERPA. • Examples include Social Security Number, Campus identification number, Place of birth, Residency status, Marital status, Married name or previous name, Parents name and address, High school units, Transfer credits, Courses completed, Grades, Credits, and grade points, Rank in class, Current class schedule, Advisor's name, Academic actions, Current disciplinary actions

8. Written Permission Not Needed • Info designated as Directory Information • Other schools in which a student ‘seeks’ or intends to enroll. • Specified officials for audit or evaluation purposes • Appropriate persons or organizations in connection with financial aid for which a student has applied • Organizations conducting certain studies for or on behalf of educational institutions to develop, validate or administer predictive tests, administer student aid programs or improve instruction • Accrediting organizations

9. Written Permission Not Needed • Authorized representatives of the following in connection with an audit, evaluation or enforcement of federal and state supported education programs:- The Comptroller General of the United States The Attorney General of the United States; The Secretary of the United States Department of Education State and Local Educational Authorities • Parents or guardians of students under the age of 21 regarding violation of any law or institutional policy governing the use of alcohol or a controlled substance • Parents of a dependent student as defined by the internal revenue code • To comply with a judicial order or lawfully issued subpoena

10. Written Permission Not Needed • In cases of health and safety emergencies if knowledge of the information is necessary to protect the health or safety of the student or other individuals • Results of disciplinary hearing to an alleged crime of violence • School officials with legitimate educational interest

11. School Official • a person employed by EMU in an administrative, supervisory, academic or research, or support staff position, including law enforcement unit personnel and health staff;   • a person or company with whom EMU has contracted (such as an attorney, auditor, or collections agent);   • a person serving on the Board of Regents;   • a student serving on an official committee, such as a disciplinary or grievance committee, or assisting another school official in performing his or her tasks

12. Legitimate Educational Interest • At Eastern Michigan University, a school official has a legitimate educational interest if the official needs to review an education record in order to fulfill his or her professional responsibility.

13. Parental Rights • Parents have no inherent rights under FERPA to inspect a student’s education records. Records may be but are not required to be released to parents under the following circumstances:   • with the written consent of the student • in compliance with a judicial order or subpoena • in connection with a health or safety emergency as determined by the holder of the record • if the parents declare the student as a dependent on the most recent federal tax return • in the case of violation of the college’s drug/alcohol policy

14. Spousal Rights • A spouse has no inherent rights under FERPA to access the student’s education record. A spouse must produce written consent from the student for access to information.

15. Release Forms • Before releasing FERPA-protected information, a signed and dated consent must be obtained from the student. This written consent, which may be an electronic signature, must:   • specify the records that may be disclosed   • state the purpose of the disclosure   • Identify the party or class of parties to whom the disclosure may be made

16. Destruction of Records • Can’t just throw a document in the trash if it contains ANY identifiable student information. • Three appropriate ways of destroying records • Shredding • Burning • Sensitive Materials Recycling (bins are locked)

17. Danger Zones for Faculty • Not Related to Posting of Grades • See Handout • Related to Posting of Grades • See Handout • Use “Consent Form to Post Grade by Student Created Pin Number” • See Handout

18. FERPA Violations and Penalties • Under federal law, FERPA violations may result in the loss of federal funding for the University. • Under state law, both the University and you could be sued for breach of confidentiality and/or invasion of privacy.