The Family Educational Rights and Privacy Act: (FERPA) A Legal Overview
The Family Educational Rights and
Privacy Act (FERPA): A Legal Overview
Jody Feder
Legislative Attorney
American Law Division
Summary
The Family Educational Rights and Privacy Act (FERPA) of 1974 guarantees
parental access to student education records, while limiting the disclosure of those
records to third parties. The act, sometimes referred to as the Buckley Amendment, was
designed to address parents’ growing concerns over privacy and the belief that parents
should have the right to learn about the information schools were using to make
decisions concerning their children. Although no substantial changes have been made
to FERPA since 2001, there are at least three bills in the 110th Congress that propose to
amend the statute. One of those bills — H.R. 128 — would amend FERPA in order to
improve the access of victims of crimes to information concerning the outcome of
disciplinary proceedings by institutions of higher education. The other bills — H.R.
2220 and S. 2859 — would clarify rules regarding disclosure of a student’s educational
records whenever there is a threat to the health and safety of the student or others.
This report provides an overview of the Family Educational Rights and Privacy Act’s
(FERPA’s) statutory provisions,1 as well as a discussion of several court cases that have
clarified the statute’s requirements.
Access to Education Records
Under FERPA, educational agencies and institutions that receive federal funds must
provide parents with access to the educational records of their children. Access must be
provided within a reasonable time, but no later than forty-five days after a request to
access education records has been made. In addition, the statute provides parents with an
opportunity to challenge the content of their children’s education records in order to
1 20 U.S.C. § 1232g.
ensure that the records are not inaccurate, misleading, or otherwise in violation of a
student’s privacy rights.2
Under the statute, education records are defined to include those records, files,
documents, and other materials that contain information directly related to a student and
that are maintained by an educational agency or institution or by a person acting for such
agency or institution.3 Education records may also include videotape and products of other
media.4 However, education records do not include any of the following: (1) records of
educational personnel that are in the sole possession of the maker and not accessible to
anyone other than a substitute; (2) records maintained by a law enforcement unit of an
educational agency or institution for purposes of law enforcement; (3) employment
records; or (4) medical records for students who are age eighteen or older.5
The parents of a student may exercise rights granted by FERPA until the student
reaches the age of eighteen or attends an institution of postsecondary education. At that
point, the rights defined by FERPA are transferred from the parents to the student.6
However, FERPA provides that certain types of information shall not be available to
students in institutions of postsecondary education. Such students shall not have access
to their parents’ financial records. Letters and statements of recommendation submitted
prior to the enactment of FERPA must also remain confidential if the letters are not used
for other purposes. Finally, recommendations regarding admission to any educational
agency or institution, employment application, and the receipt of an honor must remain
confidential if the student has signed a waiver of his right of access.7
Release of Education Records
In addition to requirements regarding access to educational records, FERPA prohibits
educational agencies or institutions that receive federal funds from having a policy or
practice of releasing the education records of a student without the written consent of his
parents.8 In addition, each educational agency or institution must maintain a record that
identifies those individuals, agencies, or organizations that have requested or obtained
access to a student’s education records.9
Consent is not required for the release of education records to certain individuals and
organizations. For example, education records may be released without consent to certain
school or government officials, including the following: school officials with a legitimate
educational interest in the records; school officials at a school to which a student intends
2 Id. at § 1232g(a)(2). See also 34 C.F.R. § 99.21(a)-(b).
3 20 U.S.C. § 1232g(a)(4)(A).
4 34 C.F.R. § 99.3.
5 20 U.S.C. § 1232g(a)(4)(B); 34 C.F.R. § 99.3.
6 20 U.S.C. § 1232g(d).
7 Id. at § 1232g(a)(1)(C).
8 Id. at § 1232(b)(1).
9 Id. at § 1232(b)(4)(A).
to transfer, as long as the parents are notified of the transfer; authorized representatives
of the Comptroller General of the United States, the Secretary of Education, or state
educational authorities in connection with an audit and evaluation of federally supported
education programs or in connection with the enforcement of federal requirements that
relate to such programs; authorized representatives of the Attorney General for law
enforcement purposes; in connection with a student’s application for, or receipt of,
financial aid; state and local officials pursuant to a state statute that requires disclosure
concerning the juvenile justice system and the system’s ability to effectively serve the
student whose records are released; and persons designated in a federal grand jury
subpoena or any other subpoena issued for a law enforcement purpose.10
In addition, education records may be released without consent to certain third
parties other than school or government officials. For example, organizations conducting
studies for the purpose of developing, validating, or administering predictive tests,
administering student aid programs, and improving instruction may access education
records. However, such studies must be conducted in a manner that does not reveal the
personal identification of students and their parents, and the education records must be
destroyed when they are no longer needed. Education records may also be released to
accrediting organizations to carry out their accrediting functions, and to the parents of a
dependent student. Finally, education records may be released in connection with an
emergency if the records are necessary to protect the health or safety of the student or
other persons.11
In the wake of the shootings at Virginia Tech, there have been several attempts to
clarify FERPA’s health or safety exception. For example, under recent amendments to the
Higher Education Act, the Secretary of Education is required to provide guidance
clarifying rules regarding disclosure when a “student poses a significant risk of harm to
himself or herself or to others, including a significant risk of suicide, homicide, or
assault.” Such guidance must clarify that institutions that disclose such information in
good faith are not liable for the disclosure.12 In addition, the Department of Education
recently issued proposed regulations that contained similar clarifications regarding
disclosure requirements in the event of a threat to health or safety.13
In 2001, the definition of “education records” and the requirements related to the
release of such records was the subject of review in a Supreme Court case, Owasso
Independent School District v. Falvo, that considered whether peer grading and the
practice of calling out grades in class resulted in an impermissible release of education
records.14 The plaintiff argued that the grades on student-graded assignments were
education records maintained by students acting for an educational institution and that
students should not be allowed to call out the grades they recorded in class because
education records may not be released without consent. The school district, on the other
hand, maintained that FERPA’s definition of “education records” covered only
institutional records or materials maintained in a permanent file, such as final course
10 Id. at § 1232(b)(1).
11 Id.
12 P.L. 110-315, § 801.
13 73 FR 15574.
14 534 U.S. 426 (2002).
grades, standardized test scores, attendance records, and similar information, but not
student homework or classroom work.15
Ultimately, the Court concluded that the grades on peer-graded student assignments
were not education records, identifying two statutory explanations for its decision. First,
the Court determined that student assignments are not “maintained” within the meaning
of FERPA’s definition of “education records” because neither the teacher nor the students
maintain the grades of a recently corrected assignment in a manner that reflected a
common understanding of when something is “maintained.” As the Court observed, the
word “maintain” suggests records that “will be kept in a filing cabinet in a records room
at the school or on a permanent secure database....”16 Second, the Court concluded that
student graders are not “person[s] acting for” an educational institution for purposes of
FERPA’s definition of “education records.” The Court found that the phrase “acting for”
does not suggest students, but rather connotes agents of the school, such as teachers,
administrators, and other school employees. Moreover, the Court maintained that
correcting a classmate’s work could be viewed as being part of an assignment: “It is a way
to teach material again in a new context, and it helps show students how to assist and
respect fellow pupils.”17 The Court did not interpret FERPA to prohibit such educational
techniques, and noted that the logical consequences of finding peer-graded assignments
to be education records would seem unbounded.
Directory Information
Absent prior notice from a parent, an educational agency or institution may release
directory information without consent. FERPA defines directory information to include
the following:
the student’s name, address, telephone listing, 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, and18
the most recent previous educational agency or institution attended by the student.
An agency or institution compiling directory information must give public notice of
the categories of information it has designated as “directory information,” and must allow
a reasonable period of time after the issuance of such notice to permit a parent to inform
the agency or institution that parental consent must be given before the release of any or
all of the directory information.19
Disclosure of Misconduct and Drug and Alcohol Violations
FERPA does not restrict postsecondary institutions from disclosing certain
information about student misconduct and from identifying student drug and alcohol
15 Id. at 431-32.
16 Id. at 432-433.
17 Id. at 433.
18 20 U.S.C. § 1232g(a)(5).
19 Id.
violations. For example, a postsecondary institution may disclose to an alleged victim of
any crime of violence or nonforcible sex offense the final results of any disciplinary
proceeding conducted by the institution against the alleged perpetrator. Likewise, an
institution may disclose to anyone the final results of any disciplinary proceeding
conducted against a student who is an alleged perpetrator of any crime of violence or
nonforcible sex offense if the institution determines as a result of the proceeding that the
student committed a violation of the institution’s rules or policies with respect to such
crime or offense.20
In addition, a postsecondary institution may disclose to a parent or legal guardian of
a student information regarding any violation of any federal, state, or local law, or any rule
or policy of the institution, governing the use or possession of alcohol or a controlled
substance. However, disclosure is permitted only when the student is under the age of
twenty-one and the institution determines that the student committed a disciplinary
violation with respect to the use or possession of alcohol or a controlled substance.21
Disclosures Related to the Investigation and
Prosecution of Terrorism
In 2001, FERPA was amended to allow the Attorney General (AG) or certain
employees designated by the AG to seek access to education records that are relevant to
an authorized investigation or prosecution of a terrorism-related offense or an act of
domestic or international terrorism. These records may be disseminated and used as22
evidence in an administrative or judicial proceeding.
To obtain access to the records, the AG or his designee must submit a written
application to a court for an order requiring an educational agency or institution to release
the records. The application must certify that there are specific facts that give reason to
believe that the education records are likely to contain relevant information, and the court23
shall issue the order if it finds that the application includes this certification. Education
records disclosed pursuant to a court order are not subject to FERPA’s requirement that
educational agencies and institutions maintain records identifying entities that have
requested or obtained access to a student’s education records.24
Enforcement of FERPA Violations
Under FERPA, educational agencies and institutions found to have a policy of
denying parental access to a student’s education records or releasing a student’s education
records without written consent may be denied federal funds. The Secretary of Education
is authorized to deal with violations of the act and to establish or designate a review board
20 Id. at § 1232g(b)(6).
21 Id. at § 1232g(i).
22 Id. at § 1232g(j)(1).
23 Id. at § 1232g(j)(2).
24 Id. at § 1232g(b)(4).
for investigating and adjudicating FERPA violations.25 The Family Policy Compliance
Office (FPCO), which acts as a review board, permits students and parents who suspect
a violation to file individual written complaints.26 If a violation is found after
investigation, the FPCO will notify the complainant and the educational agency or
institution of its findings and identify the specific steps that the agency or institution must
take to comply with FERPA.27 If the agency or institution fails to comply within a
reasonable period of time, the Secretary may either withhold further payments under any
applicable program, issue a complaint to compel compliance through a cease-and-desist
order, or terminate eligibility to receive funding.28
In Gonzaga University v. Doe,29 the Court considered whether a student could
enforce the provisions of FERPA by suing an institution for damages under 42 U.S.C. §
1983, which provides a remedy for violations of federally conferred rights. The
respondent, a former student at Gonzaga, planned to teach in the Washington state public
school system after graduation. Washington required new teachers to obtain an affidavit
of good moral character from a dean of their graduating college or university, but the
respondent was denied such an affidavit after Gonzaga’s teacher certification specialist
informed the state agency responsible for teacher certification of allegations involving
sexual misconduct by the respondent. The respondent sued Gonzaga, alleging a violation
of section 1983 for the impermissible release of personal information to an unauthorized
person under FERPA.30
The Court found that FERPA creates no personal rights that may be enforced under
section 1983. The Court noted that unless Congress expresses an unambiguous intent to
confer individual rights, federal funding provisions, like those included in FERPA,
provide no basis for private enforcement under section 1983. The respondent had argued
that as long as Congress intended for a statute to “benefit” putative plaintiffs, the statute
could be found to confer rights enforceable under section 1983.31 The Court disagreed:
“it is the rights, not the broader or vaguer ‘benefits’ or ‘interests,’ that may be enforced
under the authority of that section.”32 The Court also observed that FERPA’s
nondisclosure provisions had an aggregate focus and were not concerned with the needs
of any particular person.33 By having such a focus, the provisions could not be understood
to give rise to individual rights.
25 Id. at § 1232g(f), (g).
26 34 C.F.R. § 99.63.
27 Id. at § 99.66.
28 Id. at § 99.67(a).
29 536 U.S. 273 (2002).
30 Id. at 277.
31 Id. at 282.
32 Id. at 283.
33 Id. at 288.