Running head: EFFECTIVENESS OF FERPA
The Effectiveness of FERPA in Protecting Student Records
Donna W. Carney
Georgia Southern University
Higher Education Law
EDLD8431
Maura Copeland
November 07, 2014
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EFFECTIVENESS OF FERPA
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The Effectiveness of FERPA in Protecting Student Records
The Family Educational Rights and Privacy Act (FERPA) of 1974 was enacted with the
objective of tackling issues identified by parents, students, institutions, and others in the
educational community regarding students’ privacy. FERPA is meant to ensure that students and
parents of students may gain access to the student’s educational records and contest the
substance or release of such records to third parties ("FERPA Primer," n.d). Institutions have
required procedures that must be followed before any release of student records. These
procedures are intended to prohibit the disclosure of protected information to third parties.
Alexander (2011), states that FERPA implies that education records are institutional records kept
by a single central custodian. Education records are defined as records containing information
directly related to a student, which are maintained by an educational agency or institution or by a
person acting for such an entity ("History of FERPA," n.d.) . Federal funding may be withheld if
an institution is found in violation of FERPA. Most institutions cannot survive without federal
money and will follow the rules to keep from losing any federal funding. According to Graham,
Hall, & Gilmer (2008), misinterpretation of privacy laws and regulations obstructs appropriate
information sharing by educational institutions under FERPA. Does FERPA (or the
interpretation of FERPA) go too far to protect a student’s privacy without causing more harm to
the student or the student population?
Owasso Independent School District v. Falvo, etc.
The Owasso School District allowed teachers to participate in peer grading of school
papers. Peer grading involves allowing the students to exchange papers and the teacher reads
aloud the answers while the students mark incorrect answers on papers. After grading the
papers, the teacher may have the students tell him/her their grade in private or have the grades
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called out in class while the teacher records the grade ("Owasso," 2002). Kristja Falvo had three
children enrolled in a school in the Owasso School District in 1997-1999. One of Ms. Falvo’s
children, Philip, received special education services at the school. Ms. Falvo felt the “peer
grading” procedures humiliated her children. Falvo addressed her concerns to the school district
but they refused to change their grading procedures. Falvo filed suit against the school district.
The first court to hear the case denied Falvo’s claim ("Supreme Court," n.d.). A federal court of
appeals reversed the prior court’s decision and agreed the school’s policy did violate FERPA.
The case was appealed to the Supreme Court. The Supreme Court determined that the school’s
grading practice did violate FERPA and reversed the district court’s summary judgment.
Gonzaga University v. Doe
A student at Gonzaga University had plans to become an elementary school teacher. The
State of Washington required all new teachers to provide an affidavit of good moral character
from their graduating college ("Gonzaga," 2014). The teacher certification specialist at Gonzaga
notified the licensing agency and discussed allegations of sexual misconduct against Doe. The
student claimed the university disclosed information to state licensure officials regarding his
moral character. The Supreme Court decided in a 7-2 decision that FERPA does not create
personal rights to enforce. The concurring opinion of the Supreme Court dealt most precisely
with elements of FERPA stating that much of the statute’s language is general and specific
("FERPA Cases," 2013). The court determined the employees were acting outside their scope of
employment ("Doe," n.d.).
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United States v. Miami University
The editor of a student newspaper at Miami University requested disciplinary records of
students in order to track crimes on the campus. The records were released to the editor after
personally identifiable information was redacted from the documents ("FERPA Cases," 2013).
The ruling by the Ohio Supreme Court stated that disciplinary records of students were not
considered education records under FERPA. The Chronicle of Higher Education requested
disciplinary records for 1995 and 1996 from Miami University and Ohio State University. The
magazine wanted the personal identifiable information to be left on the documents. The
universities notified the Department of Education (DOE) of the requests ("FERPA Cases,"
2013). A complaint was filed by DOE against the universities in district court. The district
court ruled the disciplinary records were considered education records under FERPA. The DOE
appealed the case to the 6th Circuit Court of Appeals. The court affirmed the district court’s
decision. The court granted a permanent injunction and denied the discovery requests ("FERPA
Cases," 2013). The court also felt that since there are millions of people who will become
students at institutions, then the release of such personally identifiable information would cause
permanent harm to the public interest ("FERPA Cases," 2013).
With the situations of harm and death we witnessed at the Virginia Tech and Sandy Hook
Elementary School massacres one could predict there will be numerous cases filed regarding
how FERPA could better protect our children. Many students are encountered that suffer from
mental conditions that are not known to parents or have been left untreated. In the Virginia Tech
situation in 2007, Seung-Hui Cho killed 32 students and faculty members and wounded 17 more
students before killing himself (Graham et al., 2008). Many individuals knew of Cho’s
instability and never connected the dots to intervene and provide help to this young man
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(Graham et al., 2008). We may feel that if Cho’s parents had been notified of his mental
condition perhaps the senseless killings could have been avoided. The Governor of the
Commonwealth of Virginia appointed a panel to review the events leading up to the massacre at
Virginia Tech. The panel’s report criticized university administrators and law enforcement
officials for their failure to follow recommended security procedures and disregarding serious
warning signs about the mental health of Cho (Graham et al., 2008). The administrators at
Virginia Tech were not aware they could have shared pertinent information under certain
exceptions of FERPA. Federal officials observed that while state officials were mindful of
privacy laws, they did not understand their scope and did not recognize the possible harm that
could come from not sharing information within the university.
Oftentimes I feel educational institutions are so afraid of FERPA they hold back too
much information about students. Perhaps if our institutions could breathe a sigh of relief
concerning FERPA then maybe more lives could be saved and more mentally ill students could
get the medical attention they need to live normal and productive lives. We have to be able to
share information inside our universities. According to Graham, et al. (2008), it is essential that
university officials re-examine FERPA and eliminate from the university’s policies and
procedures, restrictive information sharing barriers not required by the law or regulations. It is
terribly unfortunate so many people have suffered and died due to not sharing information that
could have turned the situations around and possibly spared their lives. Legislation among other
things will have to be carried out as the days pass to protect the valuable investment we have in
our children. It will not happen quickly, but FERPA will have to be evaluated to make certain
that our children’s lives are not being harmed for the sake of privacy rules.
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References
Alexander, K. W., & Alexander, K. (2011). Higher Education Law: policy and perspectives.
New York, NY: Routledge.
Cases under FERPA. (2013). Retrieved from
http://www.counsel.cua.edu/FERPA/fedlaw/cases.cfm
Doe v. Gonzaga University. (n.d.). Retrieved from
http://www.casebriefs.com/blog/law/torts/torts-keyed-to-epstein/defamation/doe-vgonzaga-university/2/
FERPA Primer: The Basics and Beyond. (n.d). Retrieved from
http://www.naceweb.org/public/ferpa0808.htm
Falvo v. Owasso Independent School District No. I-011 (10th Cir. 2001). (n.d.). Retrieved from
http://www.wrightslaw.com/law/caselaw/2001/10th_falvo_owasso.htm
Gonzaga University v. Doe. (2014). Retrieved from http://www.oyez.org/cases/20002009/2001/2001_01_679
Graham, R., Hall, R., & Gilmer, W. G. (2008, ). Connecting the dots...: information sharing by
post-secondary educational institutions under the Family Education Rights and Privacy
Act. Education and the Law, 20. doi: 10.1080/09539960903450548
Legislative History of Major FERPA Provisions. (n.d.). Retrieved from
http://www2.ed.gov/policy/gen/guid/fpco/ferpa/leg-history.html
Owasso Independent School District v. Falvo, etc. (2002). Retrieved from
http://www.streetlaw.org/document/147
Supreme Court decision solidifies student press rights. (n.d.). Retrieved from
http://www.studentpress.org/nspa/trends/~law0302hs.html