Student Privacy Rights Under the Buckley Amendment

1. Student Privacy Rights Under the Buckley Amendment Jane K. WinnProfessor & Director, Shidler Center for Law, Commerce & TechnologyUniversity of Washington School of Law206-685-2535jkwinn1@u.washington.edu Margaret PakResearch AssistantJ.D. 2006University of Washington School of Lawpakm@u.washington.edu

2. Overview • Federal Education Record Privacy Act (FERPA) • Electronic “education records” • Performance Based Evaluation • University of Washington Student Learning Objective (SLO) software • Implications for CALI

3. FERPA

4. History • In 1974, the Family Educational Rights and Privacy Act (FERPA), also known as the Buckley Amendment, was enacted to protect against abuses of student privacy at educational institutions. • Classroom questionnaires used to assess a student’s psychology and personality were challenged as invasive to the privacy of the student and the student’s parents.

5. Senator Buckley, in support of his Act, May 1974 • “When parents and students are not allowed to inspect school records and make corrections, numerous erroneous and harmful material … can have devastatingly negative effects on the academic future and job prospects of an innocent, unaware student.”

6. Invasive to Student Privacy? • “Are you good in your schoolwork?” (Hackensack, NJ) • “Yes or No. I belong to a group that is often chased by some adults such as storekeepers, police, or homeowners.” (Federally funded survey for jr. high school students) • “Do your teachers give you work that is too hard?” (Hackensack, NJ) • “Is the best way to get ahead in life to be nice to all people?” (Howard County, MD) • “Would you like to run away from home?” (MD)

7. Fair Information Practices • Notice • Consent • Access • Security • [Onward transfer] • [Scope] • [Enforcement]

8. Broad scope • FERPA applies to any educational agency or institution -public or private - that receives federal funding under any applicable program.

9. Systematic not Individual Basis • “No funds shall be made available under any applicable program to any educational agency or institution which has a policy or practice of releasing, or providing access to any personally identifiable information in education records other than directory information without the written consent of the student.” 20 U.S.C. 1232(g)(b)(2).

10. Privacy “rights” • Parents or students over 18 may inspect and review their education records. • Parents or students over 18 may challenge the content of the student’s education records. • Schools releasing student information from a student’s education record- besides directory information must- obtain written permission from parents or students over 18.

11. “Legitimate educational interest” • The right of a postsecondary student to consent to the disclosure of personally identifiable information to a school official does not exist when an educational institution determines that the school official has a “legitimate educational interest.”

12. “Education Records” • Records, files, documents, and other materials that: • contain information directly related to a student; and • are maintained by an educational agency or institution or by a person acting for such agency or institution. 20 U.S.C. s. 1232(g) • Personally identifiable information would include information that makes the identity of the student easily traceable, such as a name, address, or personal characteristics. 34 C.F.R. s. 99.3

13. Enforcement • Family Policy Compliance Office (FPCO), Department of Education • Responsible for investigating, processing, reviewing, and adjudicating violations of FERPA. • Parents or eligible students who wish to file a complaint under FERPA should do so in writing to the FPCO. • FCPO Web site http://www.ed.gov/policy/gen/guid/fpco/index.html

14. Remedies • Termination of funding by DOE: Very rare. Financial assistance to an educational institution can be terminated only if the DOE finds that the school has failed to comply with FERPA and that compliance cannot be secured by voluntary means. • No private right of action: Individual students have no right to bring a suit against the school for violating the student’s FERPA rights.

15. Electronic “education records”

16. Are computer logging files subject to FERPA guidelines? • FERPA was enacted in 1974 when most academic records were maintained on paper. • FERPA has been amended nine times since its enactment but no amendments have been made or proposed to deal with computer logging.

17. NSF-LAMP Project (2001) • Participants: • 16 colleges and universities • 14 registrars • 56 individual participants • 2 members of the Dept. of Education’s Family Policy Compliance Office (“experts”) • Purpose was to determine whether the posed hypothetical types of log data being collected constitute “education records” under FERPA and if various uses of data violate student FERPA rights.

18. HYPO #1: Smart Card Data • University has advanced smart card system. Smart card data that is collected includes the student’s time-stamped location data from key card access systems, student’s meal purchases, and library records. • 86% of experts and registrars agreed that such data constitute “education records” under FERPA.

19. HYPO #2: Printer Server Logs • For accounting purposes, University logs name-related use patterns on printing services. Data includes: name of student; student’s account number; number of sheets printed; time and date of sheets printed; and whether the printing was graphics or text type. • 71% of experts and registrars agreed that the data constitutes “education record” under FERPA

20. HYPO #3: Surveillance • The Dean is curious about the work productivity of a student staff member. The Dean asks the system administrator to collect information on the student’s use patterns including time of access, content viewed, email destinations, and log off time. System administer secretly turns on logging function and collects requested data. • 64% of registrars agreed that the data constitutes “education record”; Experts replied “don’t know”

21. Policies today • Educational institutions vary in their approaches to computer logging. • FERPA policies for electronic education records range from a strict application of the FERPA language to a looser definition.

22. A strict application of FERPA… • “Data posted by or about a student in WebCT is covered by FERPA because the data is directly related to a student and is maintained by the university.” • North Carolina State University offers access to learning programs called Web CT. Tools include an on-line discussion area, private email, student homepages, and chat logs.

23. … and a loose application • “Academic chat rooms and discussions conducted in connection with ASU classes may be logged but may be treated as confidential educational records under FERPA.” • Arizona State University provides students with on-line resources such as chat rooms, forums, message boards, and news groups.

24. Performance-Based Evaluation

25. A Solution to the Funding Gap in Higher Education? • A funding model that creates a contractual relationship between the educational institution and the state. • Ex. 1: Universities would agree to define and deliver specified outcomes in education, research, and service, and the state would agree to fund the University to support these outcomes. • Ex. 2: In exchange for delivering a set of performance goals, the state allows the University to set its own tuition rates. • Ex. 3: Use performance-based evaluations to allocate public dollars to the most effective institutions.

26. Trend for performance-based evaluation • According to Governing Magazine, between 1999 and 2002, the number of states with some form of higher education performance measurement increased from 25 to 44. • “Performance indicators" included number and percentage of accredited programs, degrees awarded, faculty workload and productivity, student satisfaction, pass rates on licensing exams and placement data on graduates.

27. Performance-Based Contracts in Washington state • Efforts currently underway to develop a prototype performance contract between a research institution and the state of Washington. • UW’s director of state relations, Randy Hodgins: • “It’s an opportunity to be explicit about what the state expects from higher education. A performance contract can have benchmarks that describe what the state wants from the University, in terms of bachelor’s degree production, diversity, contributions to regional business, jobs creation, and other things.” Jan. 29, 2004

28. University of Washington Student Learning Objectives

29. University of Washington Student Learning Objectives • “The purpose of the Student Learning Objectives (SLO) initiative is to better understand the characteristics of the learning experiences that UW faculty offer to undergraduate students. Each learning experience will be encoded, using University-level learning objectives, as well as departmental learning objectives, if desired.”

30. The Technology • The UW SLO system consists of four separate web applications: • The SLO Encoder is what faculty use to encode the learning objective values for the courses they teach, as well as create any customized departmental learning objectives that they need. • The SLO Reporter is a tool for viewing information in the database. It answers questions about the learning objective encodings of courses at the UW, and about the learning experiences of our students. • MyLO, the SLO Student system, is in a very early stage of development. It will allow students to view their personal learning objective profile, view the encodings of courses they have taken, see how they are doing compared to possible future profiles, and to educate themselves about learning objectives. • The SLO Admin System is a tool that a non-technical support person can use to perform basic system administration tasks. See http://www.washington.edu/slo/technology.html

31. SLO for professors to collect data about learning objectives • Many courses at the UW are encoded by their instructors in terms of the learning objectives that they offer. Every course has a total of 100 learning objective points. It is entirely up to the faculty member to decide how to divide up those points among the 15 University-wide standard learning objectives, and any custom learning objectives. http://www.washington.edu/slo/

32. University Level Objectives • Philosophies and Cultures: Understanding and appreciating diverse philosophies and cultures. • Society and Environment: Understanding the interaction of society and the environment. • Interpersonal: To advance the skills necessary for working with others toward a common goal.

33. UW’s Student Learning Objectives (SLO)-MyLo Demo • UW SLO Demo “What have you learned?” “Who will you become?”

34. Implications for CALI?

35. Student end-users • At the University of Texas, students who wished to use the Blackboard system, an on-line teaching tool, were required to consent to the release of their directory information. • Students led an initiative to allow students to choose which parts of their directory information would be kept confidential without denying them the use of Blackboard.

36. Independent contractor status • “The definition of ‘educational records’ under FERPA include records, files, documents and other materials that are maintained by a person acting for the educational institution.” Educational institutions are liable for any violations of FERPA made by independent contractors performing services on behalf of institution. • SeeLetter to Daniel R. Boehmer, Student Loan Marketing Association, April 19, 1993, • Available at FERPA Online Library: http://www.ed.gov/policy/gen/guid/fpco/ferpa/library/ferpansc.html