Every August, the KSB Crew rolls out looking for America's greatest drive-ins, diners, and dives staff in-service days in order to prepare educators with the latest legal updates they need to take on the new school year. If you've had one of us in your building, you know we'd rather get to the questions and issues that matter most to you rather than simply drone through policy and handbook updates (though some of that can't be avoided!). As a result, we always try to leave time for a good ole game of “Stump-The-Idiot” to take on your toughest questions. Now, we won't mention which KSB attorney got stumped during Karen's Wyoming leg of presentations, but we did want to share that question and the best lawyerly answer we can give it. . . it depends!
The Question
A lot of student information in the classroom or other service areas, such as a student's visual schedule or behavior chart, or a staff members' own list of students to receive services, could potentially be seen by other students or visitors to the educational environment. Is this a FERPA issue?
The Answer
As promised, it depends! A key threshold question will be whether or not the document or record has been maintained as defined by board policy. Even if so, a significant amount of this type of information may qualify as “directory information” under federal law and board policy. Finally, the question will likely turn on who is disclosing the information.
FERPA Protects Records That Are Intentionally Maintained
Start with the rule everyone remembers. The regulations require that “[t]he parent or eligible student shall provide a signed and dated written consent before an educational agency or institution discloses personally identifiable information from the student's education records,” subject to the exceptions listed elsewhere in the rules. 34 C.F.R. § 99.30(a); see also 34 C.F.R. § 99.31.
The phrase doing the work is “education records.” The regulations define that term to mean “those records that are: (1) Directly related to a student; and (2) Maintained by an educational agency or institution or by a party acting for the agency or institution.” 34 C.F.R. § 99.3.
Read those two provisions together an
d the answer to a great many classroom questions falls out. FERPA protects personally identifiable information drawn from records the district maintains. A document the district does not maintain is not an education record at all, and FERPA never reaches it.
So what does “maintain” mean? The regulations never say. FERPA leaves the term undefined, which hands the question to your board.
Your student records policy should answer it. Pull that policy before the next question lands on your desk and read the definition your board actually adopted. If the policy says nothing, or if the definition no longer matches how your staff handle records day to day, work with your board to fix it. A definition that tracks your real procedures protects your staff far better than one drafted for somebody else's district.
The Supreme Court took up the question of applying this limitation to classroom work in Owasso Independent School District No. I-011 v. Falvo, 534 U.S. 426 (2002). Students in an Oklahoma district scored one another's assignments and reported the results to the teacher. A parent sued, arguing that the practice disclosed education records without consent. The Court disagreed. It held that peer-graded work is not “maintained” within the meaning of FERPA, reasoning that the statute contemplates records kept in a filing cabinet in a records room or on a permanent secure database, not a paper a classmate holds for a few moments. Id. at 432-33. The Court also observed that a student grading a classmate's work does not act for the institution. Id. at 433. Other students saw the work, and FERPA still did not apply, because nobody maintained it.
Directory Information May Generally Be Disclosed
Even when the district maintains a record, FERPA carves out directory information. “An educational agency or institution may disclose directory information if it has given public notice to parents of students in attendance and eligible students in attendance” of the types of information it designates, the right to refuse that designation, and the window to object. 34 C.F.R. § 99.37(a).
That carve out reaches further than most people expect. Boards routinely designate student name, grade level, class assignment, participation in activities, awards received, and in some districts the student schedule itself. If your board designated it and no parent opted out, you may disclose it.
Pull the policy here too. Read the list your board adopted and ask two questions. Does it sweep in information your community would not expect the district to release? Does it leave out information your staff share every day without a second thought? Either answer causes problems, and you fix both with the board reviewing policy rather than in the middle of a complaint.
Then track your opt outs. A parent who refuses the designation converts ordinary directory information into information you must protect. Those students’ information need closer handling on the bulletin board, in the program, and yes, on the visual schedule.
Who Disclosed
FERPA regulates schools. It governs disclosures by educational agencies and institutions and by the officials acting for them. A parent who posts a child's behavior chart on social media, or a student who tells a classmate about a service schedule, does not violate FERPA, because neither one is the school. Keep the distinction straight in both directions, though. A parent or student putting information out in public does not clear the district to confirm it.
Examples from the Feds
The office charged with enforcing FERPA has taken up classroom display more than once. Three sources are worth noting.
•Letter to Westlake City Schools (FPCO Oct. 29, 1990) is the most useful of the set. FPCO advised that a teacher may not post a roster or listing of student grades by name, Social Security number, or other personal identifier without prior parental consent, and suggested a code that the student and teacher recognize but classmates do not. It also framed the standard that has governed ever since: FERPA does not interfere with a school's or a classroom teacher's ability to carry out what are generally considered normal and legitimate educational activities, so judging the privacy impact of classroom practice calls for a thoughtful, common sense, and flexible approach. Display of exemplary student work survived under the “awards received” prong of directory information. 34 C.F.R. § 99.3, subject to the conditions in § 99.37.
•Letter to Parent Regarding Classroom Activities (FPCO Aug. 3, 2018) (Tynes Elementary) repeats the same normal and legitimate educational activities language, applies the same flexible approach, and dismisses a complaint about classroom work.
•The SPPO FAQ asking whether FERPA permits school officials to release information they personally observed draws a clean line. FERPA reaches education records and personally identifiable information drawn from them. It does not reach what a school official knows through personal knowledge or observation.
So what is the answer?
If a student has a visual schedule on her desk that includes “speech with Ms. Kathy” at 10:00 on Tuesdays, you probably aren’t violating FERPA the night of parent-teacher conferences. This visual schedule is not going to be “maintained” by the district and this is a form of directory information since it is functionally a class schedule. But if you change the facts even a little the whole answer could change.
Stumped?
It really isn't a good question unless your lawyer can answer with… it depends. If you have any other questions to stump your favorite school law attorneys, don't hesitate to reach out to us at ksb@ksbschoollaw.com or at 402-804-800