Proposed Amendments to regulations under FERPA
DQC Webinar on Proposed FERPA Amendments
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We apologize, but due to technical difficulty the webinar from April 23 is not available.
The U.S. Department of Education (USDE) has issued for public comment proposed amendments to regulations under the Family Educational Rights and Privacy Act (FERPA).
Because FERPA, as previously implemented, has raised significant impediments to core functions of state longitudinal education data systems (SLEDs), and these proposed regulations include provisions that bear on these issues, it is critical to carefully review the proposed regulations and submit comments to USDE, including comments that endorse positive provisions, as well as comments that recommend revisions or additions that are needed. Public comments on the proposal are due May 8. The Data Quality Campaign will be circulating to members and partners for review and editing a draft set of comments within the next week, so please check back for more information.
Public Comment Process
- Public comments are due to USDE within 45 days after publication (by May 8, 2008).
- The proposed regulations include specific instructions on how to send comments.
- Based on a fuller review of the proposed regulations, DQC will circulate to members/partners for review a draft set of comments within the next week, with the goal of formulating a uniform response that will be supported or co-signed by interested parties. We hope that those comments will be helpful to others in formulating their own responses.
Initial Review Related to State Longitudinal Education Data Issues
Positive changes: Based on a quick, preliminary review, the proposed regulations appear to include a number of very helpful proposed changes in interpretation and clarifications that will help to facilitate effective state longitudinal data systems. In particular –
- SLED Redisclosures. They provide that state educational officials or their representatives (which we believe would include SLED administrators) may redisclose personally identifiable information from student records for authorized purposes in FERPA. That generally means that a valid disclosure could be made by the SLED without having to be approved by each school or school district that provided the information.
- Research. FERPA includes a provision that an authorized disclosure of data for a study to improve instruction must be "for, or on behalf of," a school or local educational agency. In the past, USDE interpreted this provision very restrictively to mean the school or local educational agency must initiate and control the study. Under the proposed regulations, the statute is interpreted to mean simply that there must be an agreement between the school or local educational agency and the research organization specifying the research purposes for which the data may be used and including other FERPA restrictions; not to exclude studies initiated by the research organization.
Needed Clarifications/Additions: Again, based on our preliminary, quick review, there appear to be several areas where clarifications or additions are needed. In particular--
- Research Agreements by SLED. One principle that needs clarification is whether the state data system may enter the noted research agreements on behalf of schools and school districts. That point is not squarely addressed in the proposed regulations, although we believe that the logic for the changes described above should drive a positive response. If this is not permitted, it would subvert the usefulness of both of the above steps forward in interpretation.
- Data Sharing Between K-12 & Postsecondary SLEDS. While the proposed regulations include some positive discussion of combining data in consolidated K-16 or 20 data systems, it is not entirely clear that they fully resolve the issue of sharing data between separate K-12 and postsecondary systems in states that maintain separate systems. The proposed regulations appear to incorporate USED's historic view against sharing data between different state agencies because the state educational agency does not have the same control that it has for a contractor. On the other hand, there may be avenues under the proposed regulations to resolve this issue by issuing state laws or regulations that give joint authority to the two systems to evaluate programs at all levels, or if USED makes the clarification that a state data system may enter an agreement for a study.
- Sharing Data with Social Service/Employment Agencies. The proposed regulations appear not to provide relief regarding the ability of education agencies to share data with other social service, juvenile agencies, and employment agencies to promote collaboration in meeting the needs of their clients. If these arrangements can be tied back to the goal of studies to improve instruction, the proposed regulatory changes on research agreements may be helpful. On the other hand, if the information sharing is designed to strengthen social or employment services outside the school, the proposed regulations appear to be unhelpful.
Other Issues Addressed in the Proposed Regulations
The proposed regulations include provisions on a wide range of other issues, including—
- Guidance on de-identification of data (formerly referred to as "anonymous data" by USDE), an issue that is important to SLEDS;
- Clarification that records may be maintained by contractors;
- Deference to educational agencies and institutions on application of the provisions authorizing disclosures for health and safety emergencies;
- Exclusion of alumni records;
- Implementation of a Supreme Court holding that students exchanging and grading papers are not records subject to FERPA;
- Clarification of the circumstances in which parents of a postsecondary student may have access to their child's records;
- Clarification of USDE's enforcement role, including provisions that USDE may issue a notice of findings for a single unauthorized disclosure, but may seek to withhold funds only if there is a pattern or practice of unauthorized disclosures.
We will be following up with additional information, as described above. In the meantime, if you have any questions, please contact Tom Lindsley, tlindsley@just4kids.org, or Steve Winnick, steve.winnick@hklaw.com.
