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January 24, 2005

FERPA; Silly Education Records Privacy Rules

I gave a lecture today on how regulations are made and interpreted. Half the lecture was structured around the example of FERPA, the federal law regulating what teachers can publicly disclose about their students. The big theme was that there is a long journey between the law passed by the legislature and the internal rules imposed by an organization like a corporation or a university which is a little like the game "telephone" except with a bias towards silly caution.

In this case, the end result is an Indiana University regulation saying explicitly that a professor cannot say in a recommendation letter that the student got an "A" in his class, because that would be unauthorized disclosure of grades to a third party. You'd don't believe it? Take a look at "Main Points for Faculty to Remember" (main points-- the picky ones are somewhere else)

"I'm often asked to write letters of recommendation for students for awards, graduate school, or job applications. How does FERPA apply this case?

Statements bas

ed on your personal assessments and observations of the student are not derived from "education records" covered by FERPA. However, you must obtain the student's written consent if our letter includes such information as the student's overall GPA, or grades in specific courses....

... It gets worse. A January 10 memo to the entire IU faculty tells us to be sure not to disclose to anyone even that a particular student is enrolled in a particular class (as well as use shredders if possible-- not, I think, a wise use of money at a university where faculty must empty their own office garbage cans because we can't afford enough janitors). This implies that without written student consent, I am not allowed even to say that a student took my class-- unless I can say that (or his grades) are from "personal assessments".

An example of stupid federal law, or stupid regulators, or stupid federal judges run amok? No. I don't like the federal law, but it doesn't look so unreasonable. Neither do the federal regulations, though the less official "opinion letters" issued by the Dept. of Education are an order of magnitude sillier. The only Supreme Court case I found is positively sensible; the Court unanimously rules that an appellate court was wrong to say that "peer grading", in which one student grades the paper of another, violates FERPA, and Justice Kennedy's opinion even makes fun of the appellate court, between the lines.

No, the problem is Indiana University's interpretation of the federal law, an ultra-cautious one that sacrifices learning to the gods of the plaintiffs' bar.

References: Here is the Buckley Amendment, or FERPA, from the United States Code. Falvo v. Owasso 534 US 426 (2002) is perhaps the leading Supreme Court case interpreting it, a case in which the U.S. Solicitor General supported less regulation. The Dept. of Education has made regulations, of which the definitions are key, and issued opinion letters saying no grades allowed on postcards and no use of the last 4 digits of SS number for posting grades. Also, I've linked the Dept. of Education FERPA site and Indiana University's "Main Points for Faculty to Remember". My own hmtl overheads are here.

Posted by erasmuse at January 24, 2005 08:17 PM

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That's quite an insane piece of interpretation there.

Hm...does that mean to say that IU will not be allowed to confirm or deny that you even teach there?

If they can, how long before they cannot?

Posted by: shredder bob at February 16, 2005 01:00 PM

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