FERPA Facts from the Central Office (Parental Access & Dependent Children)

When enacting the Family Educational Rights and Privacy Act (FERPA), Congress clearly indicated a strong preference for a school to obtain the prior written consent of a student (parent in the K-12 setting) before disclosing or granting access to anyone to FERPA-protected student information. At the same time, Congress recognized that the operational needs of an educational institution (not a System) make obtaining prior consent in every instance impractical and/or unreasonable.

In order to meet the operational needs of a college, and without prejudicing a student, Congress included a limited number of provisions that authorize the disclosure of/access to FERPA protected information without a student's prior written consent. These provisions are to be read narrowly; that is, disclosure/access is not permitted, unless a provision of FERPA clearly states a permissible ground to disclose/provide access to protected information without a student's prior consent. Any doubts are to be resolved against permitting disclosure/access.

Another significant nonconsensual disclosure provision of FERPA relates to parental access to student records protected by FERPA. Simply stated, in the postsecondary setting parents have no rights to student information under FERPA. However, as we all know very well, "helicopter parents" are a modern phenomenon. In some cases, parents can be a helpful support system for both the student and the college. Sometimes not, though.

FERPA expressly makes clear that colleges have the absolute discretion to disclose protected student information to parents and/or guardians of a student, without that student's prior consent, if and only if the student was claimed as a dependent on the most recent federal income tax return of any parent or guardian. In other words, the discretionary disclosure is not limited to just the parent that claimed the student as a dependent. To be clear, even though a student qualifies as dependent in this regard, a college is never required to make any disclosure to such student's parents or guardians. If a college is considering using this provision to authorize disclosure to a parent, FERPA requires that the college view a copy of the parent's income tax return before making any such disclosure.

FERPA Head Scratcher: Judges occasionally demonstrate their lack of understanding of FERPA. For example, as recently reported in Inside Higher Ed, a Florida appeals court ruled that a college's adjunct instructor is entitled to know the name of the student who accused him of being a poor teacher in a course evaluation. Notwithstanding, the college denied the student comment was a consideration in the nonrenewal of the instructor's employment, they argued that the name might help him defend against false accusations that he maintains led to the nonrenewal. The appeals court found that the student's name in such a case isn't protected by state or federal law -- and that the adjunct was entitled to the name. The decision focused on the idea that education records are about students. "We conclude that the e-mail before us is not an 'education record' because it does not contain information directly related to a student," the decision said. "The e-mail focuses primarily on instructor Rhea's alleged teaching methods and inappropriate conduct and statements in the classroom, and only incidentally relates to the student author or to any other students in the classroom. The fundamental character of the e-mail relates directly to the instructor; the fact that it was authored by a student does not convert it into an 'education record.' [The Family Educational Rights and Privacy Act]  was not intended to protect from disclosure such records primarily questioning an instructor's teaching methods or criticizing the teacher's classroom demeanor and comments."

Comments, suggestions, are invited and should be forwarded to Tom Clark, Academic and Student Affairs Associate.