Thomas' Work Space

Here I am collecting (i.e. simply curating; my thanks go to  http://www2.ed.gov/policy/gen/guid/fpco/ferpa/students.html and http://counsel.cua.edu/ferpa/questions/index.cfm)  guidance and a few opinions on cases that are common in the Language Resource Center:

1.  http://www2.ed.gov/policy/gen/guid/fpco/ferpa/students.html:

   This guidance document is designed to provide eligible students with some general information regarding FERPA and their rights, and to address some of the basic questions most frequently asked by eligible students. You can review the FERPA regulations, frequently asked questions, significant opinions of the Office, and other information regarding FERPA at our Website as follows:

   www.ed.gov/policy/gen/guid/fpco/index.html

    

   The term "education records" is defined as those records that contain information directly related to a student and which are maintained by an educational agency or institution or by a party acting for the agency or institution.

   FERPA generally prohibits the improper disclosure of personally identifiable information derived from education records.

    

   Another exception permits a school to non-consensually disclose personally identifiable information from a student’s education records when such information has been appropriately designated as directory information. "Directory information" is defined as information contained in the education records of a student that would not generally be considered harmful or an invasion of privacy if disclosed. Directory information could include information such as the student’s name, address, e-mail address, telephone listing, photograph, date and place of birth, major field of study, participation in officially recognized activities and sports, weight and height of members of athletic teams, dates of attendance, degrees and awards received, the most recent previous educational agency or institution attended, grade level or year (such as freshman or junior), and enrollment status (undergraduate or graduate; full-time or part-time).

   A school may disclose directory information without consent if it has given public notice of the types of information it has designated as directory information, the eligible student’s right to restrict the disclosure of such information, and the period of time within which an eligible student has to notify the school that he or she does not want any or all of those types of information designated as directory information. Also, FERPA does not require a school to notify eligible students individually of the types of information it has designated as directory information. Rather, the school may provide this notice by any means likely to inform eligible students of the types of information it has designated as directory information.

    

   Pasted from <http://www2.ed.gov/policy/gen/guid/fpco/ferpa/students.html>

2. Q Is a student’s assignment (written or perhaps a video production), once handed in to a professor, an education record protected by FERPA? A In a September 1, 1993, opinion letter to the American Library Association, LeRoy Rooker, the Director of the Family Policy Compliance Office, stated the following: "Generally any written examination or paper that is prepared by a student and that reveals or discloses a student’s identity would be considered an ‘education record’ under [the regulatory] definition (so long as it is maintained by the institution). That is, in ordinary circumstances FERPA prevents an institution from disclosing or publishing a student’s written examination or paper without prior written consent, except in accordance with the specific exceptions set forth in 34 C.F.R. § 99.31." 34 CFR 99.31 lists a number of exceptions, including disclosure to other school officials with a legitimate educational interest; disclosure in connection with financial aid for certain purposes; stated and local educational authorities; and to accrediting organizations among others."
3. Disclosure Without Consent to a Third Party
   1. Q. My institution has migrated to Google for email and now is interested in making Google Docs available to the community. The idea is that faculty and students will be able to collaborate on documents using Google Docs which would make the learning environment richer. I am concerned that this "sharing" may inadvertently lead to the inappropriate disclosure of FERPA protected information especially the information of those students who have opted out of disclosing "directory information". I would love to learn what other institutions have done to deal with this issue. A. The first thing to figure out is whether your contract with Google (which typically covers both e-mail and apps together) is FERPA-compliant to begin with. Google doesn’t "volunteer" that, so chances are it isn’t, which raises issues as to whether you can disclose information even to Google. To the extent that the "docs" are accessible only to students enrolled in a particular class, I believe that your faculty have some leeway to discuss students and their work — much as they do in a physical class.  (For example, FPCO has stated that students have no right under FERPA to remain anonymous in class, and, as one Justice noted in the Owasso case, much to the dismay of law students everywhere, FERPA does not prohibit use of the Socratic method.) However, if the "docs" are accessible more broadly, your faculty could not post anything that would constitute an education record without the student’s consent, and it’s worth thinking through, from a policy perspective, whether faculty should be allowed to require students to post things directly to an open site. Another issue to think through is copyright. While most of the commercial CMS systems are now capable of facilitating TEACH compliance easily, through integration with your SIS, my understanding of Google Apps is that it currently would require each individual faculty member to take all of the necessary steps manually. Answer courtesy of Steven J. McDonald, General Counsel, Rhode Island School of Design.
      
   2. Q. An on-campus speaker was videotaped, and the sponsoring department wants to put the video up on its website (i.e., non-commercial use). The videographer was in plain sight. The speaker’s consent was obtained, but not those of students who asked questions (mostly off-camera). Anyone have a problem with posting the video? A. If any of the students are "personally identifiable" (under FERPA’s broad definition), I think you’d need FERPA consent. In a similar context, FPCO has stated that the transcript of a hearing that was held open at the student’s request is still an "education record" and therefore can’t be released without the student’s consent. You can include photographs in your list of directory information, but I doubt FPCO would agree to audio, at least generically. Answer courtesy of Steven J. McDonald, General Counsel, Rhode Island School of Design.