Last Updated on April 29, 2024 by Ossian Muscad
The Family Educational Rights and Privacy Act (FERPA) is a crucial piece of legislation designed to safeguard the privacy of student education records. Enacted in 1974, this federal law applies to all schools that receive funds under an applicable program of the United States Department of Education. It grants parents specific rights regarding their children’s education records, rights that transfer to the student, or “eligible student,” once they reach the age of 18 or attend a school beyond the high school level. The most important agenda in its goals is the protection of student information from FERPA violations, an increasingly vital concern in the digital age, and ensuring parents and eligible students can access and amend records, guaranteeing the accuracy of education data.
What is FERPA?
FERPA stands as a pivotal federal legislation that ensures the protection and confidentiality of student education records. This Act is applicable to all educational institutions, from kindergarten through 12th grade to post-secondary institutions, that are recipients of funding from the US Department of Education. The core objectives of FERPA are twofold: firstly, to empower parents and students with control over their educational records, and secondly, to set a standard for privacy, preventing the unauthorized disclosure of information contained within a student’s educational records without explicit written consent.
Under the purview of FERPA, parents or guardians are endowed with specific rights concerning their child’s educational records. These rights include:
- The right to access their child’s educational records. This enables parents or guardians to review the records and ensure that they accurately represent their child’s educational history and achievements.
- The right to request amendments to the records if they believe that the information is inaccurate, misleading, or violates the privacy or other rights of the student. This ensures the integrity and correctness of the educational data.
- The right to control disclosures from their child’s education records, with certain lawful exceptions. This means that schools generally must have written permission from the parent or eligible student to release any information from a student’s record.
When a student turns 18 or enrolls in a higher education institution, these rights transfer from the parents or guardians to the student. This transition underscores the importance of respecting the autonomy and privacy of young adults as they proceed with their educational endeavors beyond secondary education.
Brief History of FERPA
The origins of the Family Educational Rights and Privacy Act (FERPA) date back to the early 1970s, amid growing concerns over student privacy and rights. This period saw significant societal changes, with the Watergate scandal prominently raising issues of privacy and trust in government. Similarly, in the educational landscape, there was increasing unease about who had access to student records and how this information was used.
FERPA was enacted on August 21, 1974, by President Gerald Ford. Before FERPA, there was minimal regulation regarding who could access educational records, leading to the potential misuse of this sensitive information. The Act was designed to give control over educational records back to students and their families, establishing clear guidelines for privacy.
Since its inception, FERPA has undergone several amendments to adapt to the changing educational environment and technological advancements. Notably, in 2008, amendments expanded the definitions of “education records” and “directory information,” reflecting the growing digitalization of student data. These amendments aimed to further protect students’ information in the online world while still allowing for the necessary operation of educational institutions.
Over the years, FERPA has played a pivotal role in shaping how educational institutions manage and protect student information. It has set a foundational standard for privacy in education, ensuring that students and their families have essential rights over their educational records.
Rules, Laws, and Regulations for FERPA Compliance
Apart from protecting student data and information, FERPA also requires institutions to disclose student rights under data protection laws. Students deserve clear access to their information and should provide explicit consent before their Personally Identifiable Information (PII) is shared with other institutions or third parties.
Consent
Under FERPA, student or parental consent plays a critical role in the management and disclosure of educational records. Schools must obtain written permission from the parent or eligible student before releasing any personally identifiable information (PII) from a student’s education records. This consent form must specify the records to be disclosed, the purpose of the disclosure, and the party or class of parties to whom the disclosure may be made. It must also be signed and dated by the parent or eligible student. Consent ensures that students and parents retain control over their educational information, making them active participants in the privacy process.
Training
Educational institutions are required to conduct regular FERPA training sessions for their staff to ensure they understand how to manage and protect student educational records correctly. This training typically covers the legal requirements of FERPA, including how to handle requests for access to educational records, the process for disclosing information and understanding the circumstances under which information may be disclosed without consent. All staff members must be familiar with these guidelines to maintain compliance and protect student data effectively.
Cybersecurity
With the increasing digitization of student records, maintaining robust cybersecurity measures is paramount to FERPA compliance and the protection of student data. Institutions must implement comprehensive security protocols to safeguard educational records from unauthorized access, alteration, and breaches. Key cybersecurity practices include:
- Encrypt Data: All sensitive and PII contained in student records should be encrypted both in transit and at rest. Encryption acts as a critical barrier, preventing unauthorized users from accessing or understanding the data.
- Test and Remediate Vulnerabilities: Regularly conduct vulnerability assessments and penetration testing on systems storing educational records. Identifying and remedying these vulnerabilities promptly reduces the risk of cyber incidents.
- Monitor and Audit Trails: Implement continuous monitoring and create audit trails for all access and modification of educational records. This not only helps detect unauthorized access but also ensures accountability and traces the source of potential leaks or breaches.
- Continuous Updates and Reviews: Cyber threats are continually evolving, necessitating ongoing reviews and updates to cybersecurity policies and technologies. Institutions should stay informed about the latest cyber threats and update their defense mechanisms accordingly.
By adhering to these cybersecurity practices, educational institutions can significantly enhance the protection of student data, align with FERPA’s privacy requirements, and build trust within their educational communities.
Common FERPA Violations
Navigating FERPA compliance involves understanding not only its requirements but also common pitfalls that educational institutions may encounter. Violations of FERPA can have serious implications, including loss of federal funding and damage to an institution’s reputation. Here, we explore some of the most frequent instances of non-compliance, providing insight into how they occur and the steps institutions can take to avoid them.
Releasing Student Information without Consent
One of the cardinal rules of FERPA is that educational institutions must not disclose personally identifiable information (PII) from a student’s education records without written consent from the parent or eligible student. Violations occur when schools inadvertently or deliberately release information, such as grades, attendance records, or disciplinary information, without the proper authorization. To prevent such breaches, institutions must rigorously adhere to protocols for verifying the legitimacy of requests for student information and ensure that all staff understand the importance of these privacy protections.
Not Securing Student Records Properly
Securely maintaining student records is a fundamental aspect of FERPA compliance. Violations in this area usually involve insufficient protection measures, leading to unauthorized access, data breaches, or loss of sensitive information. Educational institutions must employ robust cybersecurity practices, including encryption, access controls, and regular security assessments, to safeguard student records against both digital and physical threats.
Denying Authorized Access
FERPA protects the privacy of student records and ensures that students and parents have the right to access them. Denying an eligible student or parent’s request to view their educational records is a violation of FERPA. Schools must have clear policies and procedures for handling requests for access to ensure compliance and should regularly train staff on these procedures to avoid unintentional denials.
Failing to Inform Parents of Their Rights
A less obvious but equally important aspect of FERPA is the requirement to inform parents and eligible students of their rights under this Act. These rights include the right to access records, the right to request amendments to these records, and the right to control the disclosure of personally identifiable information. Failure to adequately notify parents and students of these rights can lead to violations. Effective communication strategies, such as annual notices and informational sessions, can help ensure that the educational community is well-informed about these critical rights.
Consequences and Penalties for FERPA Violations
Once an institution has been found to violate FERPA, it may face a range of consequences and penalties depending on the severity and nature of the breach. These can include everything from financial penalties to more severe measures affecting the institution’s operations and reputation. Understanding the specific consequences can help institutions appreciate the importance of compliance and the potential impact of non-adherence.
Loss of Funding from the US Department of Education
The most extreme and potentially devastating consequence for an educational institution is the loss of funding from the US Department of Education (DOE). This funding is vital for the operational capabilities of many institutions, supporting everything from financial aid programs to infrastructure development. A breach of FERPA regulations can result in the temporary suspension or complete revocation of this essential financial support, significantly impacting the institution’s ability to function and serve its students.
Ordered to Cease and Desist
In instances where a violation poses an immediate threat to privacy or if there is a pattern of repeated violations, an institution may be ordered to cease and desist specific practices. This legal injunction requires the institution to stop the practices that led to the FERPA violation. Failure to comply with a cease and desist order can lead to more severe penalties, including legal action and financial penalties.
Ordered to Pay Fines
Institutions found in violation of FERPA may also be subject to financial penalties, including fines. These fines are intended to penalize the institution for the breach and act as a deterrent against future violations. The amount can vary, influenced by factors such as the nature and severity of the violation, the institution’s compliance history, and the level of harm to affected individuals.
Paused Payments for DOE
An immediate, though potentially temporary, consequence for institutions under investigation for FERPA violations can be the pausing of payments from the DOE. This measure aims to ensure compliance while an investigation is underway and can significantly affect the cash flow and financial stability of an institution, potentially impacting its operations and educational services.
Denied Eligibility for Future Funding
An institution that repeatedly violates FERPA or fails to address compliance issues adequately may find itself denied eligibility for future funding from the DOE. This long-term consequence can affect an institution’s growth, development, and ability to support its students and faculty, impacting its overall quality of education and reputation.
Loss of Accreditation
One of the most severe consequences of FERPA violations is the loss of accreditation. Accreditation is critical for educational institutions, affecting their ability to offer degrees, receive funding, and maintain student enrollment. Loss of accreditation not only undermines the institution’s credibility and quality of education but also can have a cascading effect on students’ ability to transfer credits, pursue further education, and achieve employment post-graduation.
FERPA Requirements and Exceptions
The full text of FERPA is located in the Code of Federal Regulations, Title 34, Subtitle A, Part 99, spanning over 10,000 words of complex legislative terminologies. Additionally, a 45-year case history has shaped and influenced its application, making the understanding of its nuances critical for all involved in the educational process. This comprehensive legal framework establishes the boundaries and conditions under which student information can be handled, shared, and protected. There’s certainly a lot to learn, so we’ve broken down some key FERPA requirements and exceptions below:
Understanding FERPA Rights for Eligible Students and Parents
FERPA establishes that the control of privacy rights over educational records transfers from parents to students under certain conditions—specifically, when a student turns 18 or begins their post-secondary education, regardless of their age. For instance, a 16-year-old who starts college carries these rights, not their parents. Sharing student educational data with parents after these rights have been transferred to the student could lead to a FERPA breach.
We refer to students who have assumed these rights as “eligible.” Eligibility under FERPA is defined as reaching the age of 18 or progressing to education beyond high school. FERPA effectively ensures three primary rights for eligible students or their parents:
- Educational institutions must obtain written consent from the rightful holder to disclose any educational information, with limited exceptions.
- Both parents and eligible students have the right to review the student’s educational records.
- Eligible students or their parents can seek to amend records if they find discrepancies.
Challenges arise if a request to amend a record is denied by school authorities, leading to the right of the involved parties to a formal hearing. Should the outcome remain unchanged, the disputing party is entitled to insert a statement of disagreement into the educational record.
Despite the foundational principle of privacy, FERPA does allow for the disclosure of educational information without consent under specific circumstances, highlighting a balance between privacy rights and practical necessities within educational settings.
FERPA Exceptions for Educational Institutions
In circumstances where you believe FERPA permits the sharing of student data without explicit consent, proceed with caution. The exemptions to this fundamental principle are both infrequent and defined very strictly.
“Only under very particular conditions can an institution share data without needing consent,” according to LeRoy Rooker, senior fellow at the American Association of Collegiate Registrars and Admissions Officers (AACRAO). Key exceptions include situations of health or safety emergencies and instances where the Secretary of Education requires data for audit or evaluation purposes. Generally, however, either the student or their parents must authorize the disclosure of records to external parties.
Even in scenarios where FERPA does not mandate signed consent for data sharing, many institutions opt for caution and seek explicit permission prior to disclosing any records. “It’s always best to secure consent through a signed document from the student or parent,” advises Rooker.
The explicit exceptions outlined by FERPA are detailed in Subpart §99.31 of the Act. Here, we will explore the most prevalent ones. Besides the exceptions noted by Rooker, there are circumstances where obtaining signed consent isn’t necessary for sharing student information, such as:
- Directory Information: There’s no need for signed consent when disclosing basic identifying information similar to what might be found in a yearbook. Per FERPA, this can include details like the student’s name, address, email, photograph, date and place of birth, major field of study, enrollment status, and more.
- Information Sharing with Another School: For example, sharing a student’s information with a school they intend to enroll in. “For instance, sending a letter of recommendation for a student’s admission does not typically require consent,” Rooker notes, highlighting a distinction when such information is shared with potential employers, where consent is necessary.
- Financial Aid Decisions: Information may be shared with financial aid providers to assess eligibility, amount, or terms of the financial aid, whether already awarded or being applied for.
- Participation in Eligible Studies: This allows for the sharing of data with universities, educational bodies, and others for studies aimed at developing or validating predictive tests, administering student aid programs, or enhancing instruction.
Additionally, there are FERPA exceptions for legal requests, such as judicial orders or subpoenas, and state laws regarding student data and the juvenile justice system play a role.
FERPA Compliance
Complying with FERPA is a long process that will require you to read the actual documents and understand the varied ways in which student data can be protected and ethically used. Here are some compliance tips to guide your institution in properly handling student information.
Ensure Data Encryption
Data encryption is crucial for protecting educational records as it converts information into a code, which prevents unauthorized access during storage or transmission. This means that even if data were intercepted or accessed by unauthorized users without the appropriate decryption key, it remains unreadable and secure.
Install a Firewall
A firewall acts as a barrier between your network and the internet, monitoring incoming and outgoing traffic based on a set of security rules. By installing a robust firewall, educational institutions can prevent unauthorized access to their networks, thereby safeguarding sensitive student information from potential cyber threats.
Utilize Access Control Policies
Access control policies are essential for restricting access to student educational records to only those with a legitimate need to know. This involves setting up permissions and roles within your IT systems to ensure that only authorized individuals can view or modify sensitive information, thus complying with FERPA’s requirement to protect students’ privacy.
Install Anti-Malware Software
Anti-malware software is designed to detect, prevent, and remove malicious software programs, such as viruses, worms, and ransomware. Institutions should ensure that all devices handling student information have up-to-date anti-malware software installed to guard against threats that could compromise the integrity and confidentiality of educational records.
Communicate Data Collection and Storage with Students
Transparency in data collection and storage practices is not only a good ethical practice but also a requirement under FERPA. Institutions should clearly communicate to students (and their parents, where applicable) how their data is collected, used, stored, and protected. This includes providing information on data encryption, access control policies, and any measures taken to secure their personal and educational information.
The Future of FERPA
FERPA has been in effect for over 40 years, and it’s unlikely that the law will be repealed or amended anytime soon. Â
That said, the Department of Education is currently working on issuing new regulations that will clarify some of the law’s provisions. For example, the department is considering changing the definition of “directory information” to include additional items, such as a student’s email address and photograph.Â
The department is also considering clarifying the rules around third-party contractors. Under the current regulations, schools can outsource certain functions, such as bookkeeping and food services, to third-party contractors.Â
However, the regulations don’t explicitly state whether those contractors must comply with FERPA. The new regulations would clarify that third-party contractors must comply with the law.Â
It’s still unclear when these new regulations will be finalized and implemented. However, schools should keep an eye on these developments, as they may need to change their policies and procedures to stay compliant.
Frequently Asked Questions (FAQs)
Q1: What is a FERPA-Eligible student?
A FERPA-Eligible student is an individual who is or has been in attendance at an educational agency or institution that receives funds from programs administered by the US Department of Education, thereby having rights under FERPA.
Q2: What are the two categories of educational records according to FERPA?
The two categories of educational records according to FERPA are as follows:
- Any information that is directly related to a student and
- Any information that is maintained by an educational agency or institution or by a party acting for the agency or institution.
Q3: Does FERPA Apply to K-12?
Yes, the Family Educational Rights and Privacy Act (FERPA) applies to educational agencies and institutions that receive funding from programs administered by the US Department of Education. This coverage extends to the majority of K-12 schools, both public and private. By adhering to FERPA, these institutions are required to protect the privacy of student education records and grant parents specific rights regarding their children’s educational information. These rights transfer to the students themselves once they turn 18 or attend a school beyond the high school level.
Q4: Does FERPA Apply to Private and Independent Schools?
No, FERPA (the Family Educational Rights and Privacy Act) does not generally apply to private and independent schools unless these institutions receive federal funds or are beneficiaries of programs administered by the US Department of Education. This is because FERPA is a federal law that applies to educational agencies and institutions that receive funding from the Department of Education. Consequently, many private and independent schools that do not receive such funding are not bound by FERPA’s requirements. However, if a private school receives federal funds, it must comply with FERPA regulations, which aim to protect the privacy of student education records.
Q5: Does FERPA Apply to Videos?
Yes, FERPA (Family Educational Rights and Privacy Act) applies to videos if they directly relate to a student and are maintained by the educational institution, thereby becoming part of the student’s educational records. This includes videos used for educational purposes, such as classroom recordings or videos documenting student activities. Institutions must adhere to FERPA’s privacy guidelines, ensuring that any identifiable information in these videos is not disclosed without consent, except under certain legally permitted conditions.
Q6: Does FERPA Prohibit Classroom Observations?
No, FERPA (the Family Educational Rights and Privacy Act) does not prohibit classroom observations by parents and other authorized individuals. These observations are permissible as long as they adhere to the school’s established policies and protocols. Furthermore, it’s crucial that any observation respects the confidentiality of student information. Observers must ensure that no personally identifiable information from student education records is disclosed without obtaining prior consent. This safeguard is in place to protect student privacy and uphold FERPA’s requirements. Schools may have specific guidelines on how observations can be conducted, so observers need to be familiar with and follow these policies.
Streamline FERPA Compliance with DATAMYTE
DATAMYTE is a quality management platform with low-code capabilities. Our Digital Clipboard, in particular, is a low-code workflow automation software that features a workflow, checklist, and smart form builder. This tool lets you streamline your FERPA compliance processes with ease, allowing you to focus on your institution’s core functions.
DATAMYTE also lets you conduct layered process audits (LPA), a high-frequency evaluation of critical process steps, focusing on areas with the highest failure risk or non-compliance. Conducting LPA with DATAMYTE lets you effectively identify and correct potential defects before they become major quality issues.
With DATAMYTE, you have an all-in-one solution for managing your FERPA compliance, ensuring that your institution meets all regulatory requirements, and protecting the privacy of student education records. Book a demo now to learn more about how DATAMYTE can help streamline your FERPA compliance processes.
Conclusion
Like most legislations, FERPA is a complex law with many provisions that need thorough examination and understanding. But by educating yourself and your employees about the law, you can ensure that your school is in compliance. The landscape of education is continuously evolving, and with it, the ways in which we manage and protect student information must also adapt. By staying informed of changes in the law and adopting robust privacy practices, schools can not only comply with FERPA but also foster a trustful environment where students’ rights are protected and their academic growth is supported.
