Ferpa Legal and Ethical Issues for Faculty

FERPA Legal and Ethical Issues for Faculty

FERPA Legal and Ethical Issues

Any organization receiving funding from the U.S. Department of Education (ED) is required under the provisions of the Family Education Rights and Privacy Act (FERPA) of 1974 to protect information contained in student records (Family Policy Compliance Office [FPCO], 2008, p. 1). This legislation applies to private and public schools, including K. through 12, universities, and graduate/professional programs. Only those students to which the federal funds apply are protected under FERPA. This essay reviews under what circumstances this information can be accessed by faculty at universities and colleges.

Allowable Disclosure under FERPA and ED Guidelines

Protected information includes anything that could lead to a person being able to identify a current or past student, alone or in combination with other publicly available information (National Association of College and University Attorneys [NACUA], 2007, p. 2). This includes everything from transcripts, financial accounts, photos, class schedules, emails, and post-it notes. Disclosure of this information is allowed under the following circumstances: (1) for directory information, (2) with student consent, or (3) under laws that permit disclosure without student consent. Directory information, with can include names, addresses, phone numbers, and dates of attendance, cannot include any information that would be considered to be an invasion of privacy and students must first be given the option of blocking the release of this information. Records pertaining to the physical and mental health of a student generally are not considered educational, but treatment records, and therefore the privacy of this information is controlled by HIPAA (Health Insurance Portability and Accountability Act).

Access to a student's educational records can also occur without consent if a 'school official' requests the information for a 'legitimate educational' purpose (NACUA, 2007, p. 2). The university defines who can represent a school official and under what circumstances, but can include anyone remotely affiliated with the institution. This, of course, generally includes faculty members who are the student's instructors.

Legitimate educational need can include concern about the behavior of a student. For example, a student may make an unsettling remark during class and if professor feels concerned enough, he or she may decide to investigate whether the remark is a onetime incident or represents a pattern of behavior. In cases where there appears to be a significant risk of harm to the student or others, it is the responsibility of the faculty member to report such incidents to campus safety, supervisors, and other appropriate school administrators, without consent of the student. Another example of legitimate educational need is if a faculty member is serving as an advisor in some capacity on behalf of the student.

Liability under FERPA