September-October 2002

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Legal Watch: Do Students Have a Right to Privacy?

By Ann D. Springer

Student privacy has always been a hot-button issue in academe, and faculty are often on the front lines of this debate. We know not to distribute student social security numbers or to publicize a student’s grade, but beyond these bright lines rages an argument about what is protected, what can be revealed, and to whom. Moreover, in the post-September 11 world, the issue is even murkier, as the government raises concerns about international student visas. Two recent U.S. Supreme Court cases addressed these issues under federal student privacy law. In addition, passage of the USA Patriot Act, the new law designed to aid in the fight against terrorism, makes it easier for government agencies to get access to student information, increasing the likelihood that faculty will be faced with such requests.

The Family Educational Rights and Privacy Act (FERPA) provides that identifiable information from student education records cannot generally be released to any third party without the consent of the student. Any institution that has a practice of releasing such records risks losing eligibility for federal funding, including student financial aid. But the question is: What constitutes a student record? And what is to be done when student privacy protection conflicts with other laws?

In Owasso Independent School District v. Falvo, the Supreme Court concluded that the common practice of asking students to exchange papers and grade each other’s work did not constitute a violation of FERPA. The case was brought by a parent whose grade-school-age children had been embarrassed by peer grading. She argued that the disclosure of her children’s work and scores to student graders constituted a violation of privacy rights under FERPA. The Court concluded, however, that because the grades were not yet recorded in the teacher’s grade book, they were not “maintained” by the institution, as is required by FERPA. (The Court refused, however, to decide whether a grade book itself is protected.) The Court also noted that peer grading is a legitimate pedagogical tool, allowing students to learn from the grading process. Thus, faculty may use peer grading in the classroom without FERPA concerns, but should continue to guard against disclosing final grades and other records that would invade student privacy.

Ironically, not long after the Falvo decision, the Supreme Court concluded that cases like Falvo cannot even be brought under FERPA. In Gonzaga v. Doe the Court overturned years of appellate court precedent in finding that there is no individual right of action under FERPA, meaning that a student or parent aggrieved by a disclosure of personal records cannot use FERPA to bring a lawsuit. Instead, enforcement is left to the Department of Education’s Family Policy Compliance Office, which is charged with receiving complaints and investigating breaches. In addition, the Court noted that FERPA focuses on a “policy or practice” of noncompliance, rather than the occasional accidental disclosure of information. Although individual lawsuits may still be possible under state privacy laws, faculty and administrations now have less need for worry about lawsuits resulting from the occasional release of student records.

Finally, faculty should be aware of changes to FERPA made in the USA Patriot Act, which makes it easier for the offices of the U.S. attorney general to get court orders to obtain educational records relevant to an investigation or prosecution of terrorism. Once an institution is presented with a “terrorism” court order, it must disclose the requested records. The institution need not obtain the consent of the student or parent, notify either party that the disclosure has been made, or maintain a record of the disclosure. Moreover, the act gives institutions immunity from liability for disclosures in response to such court orders.

A court order requesting release of student information will typically come to an institution’s administration or its counsel’s office. If, however, a faculty member should receive such a notice directly, the professor should immediately contact the institution’s legal counsel. Neither the faculty nor the administration wants the institution to be sued for disclosing records, and neither wants to disclose information about students that would violate those students’ privacy rights.

Faculty are important gatekeepers for much student information and should be aware of evolving student privacy law. Institutional counsel are an excellent resource in this area, and one good way to keep informed about the law and campus policy is to invite the institutional counsel to brief the faculty senate on these issues. Students, faculty, and the administration will all benefit by a vigilant and proactive approach to student privacy.

Ann Springer is AAUP associate counsel.