Education

Question 1

Define:

Family Educational Rights and Privacy Act

Answer 1

• provides students with control over disclosure and access to their education records
• generally prevents schools from divulging education record information to parties other than the student without the student’s consent

Question 2

Define:

What schools does FERPA apply to?

Answer 2

applies to all educational institutions that receive federal funding (both K-12 and universities)

Question 3

Define:

student

under FERPA

Answer 3

any individual who is or has been in attendance at an educational agency or institution where:
* attendance includes individuals who are present on campus as well as those who participate via the internet
* does NOT include individuals who only applied to an educational institution or were accepted but didn’t enroll

Question 4

Define:

educational record

under FERPA

Answer 4

all records directly related to the student and maintained by or on behalf of the K-12 school or university where:
* record: any information recorded in a way, including handwriting, print, computer media (emails), video or audio tape, film, etc.

Question 5

What are exceptions to “education record”?

under FERPA

Answer 5

• campus police records created and maintained by campus police for law enforcement purposes
• employment records when employee isn’t a student
• applicant records who those not enrolled
• alumni records created after the individual is no longer a student
• grades on peer-graded papers before collected or recorded by university representative
• treatment records or health records, subject to reqs

Question 6

Define:

personally identifiable information

under FERPA

Answer 6

• personal identifiers like student number, DOB, POB
• information that alone or in combo can be linked to a student and would allow the student to be identified with reasonable certainty
• info requested by a person whom the school reasonably believes knows the identity of the student to which the education record is linked

Question 7

Define:

directory information

under FERPA

Answer 7

information that would not generally be considered harmful or an invasion of privacy if disclosed

Question 8

How do schools determine what “directory information” is?

under FERPA

Answer 8

• allows individual educational institutions to create their own definition for this based on lists of examples provided in statutes and rules laid down by DoE
• before an educational institution can declare information to be directory information, must provide students with opportunity to opt out of release of their directory information (unless it falls under a FERPA exception)
• student ID # can only be used as directory information if the number can’t be used to access education records without another factor known only by the authorized user

Question 9

Who is the rights holder under FERPA?

Answer 9

• when student enrolled in high school → parent holds rights under FERPA if student under 18, even if student also attending classes at college or university
• student only attending college or university → student is holder regardless of age

Question 10

When the student is the rights holder, when can a school disclose educational records to a parent?

under FERPA

Answer 10

• school may disclose to parents educational records of student without their consent if student is a dependent for tax purposes
• student may sign written consent form to grant parents’ permission to view their education records

Question 11

When is disclosure of education records permitted?

under FERPA

Answer 11

if one of following conditions is met:
* info isn’t “personally identifiable”
* info is “directory information” that student hasn’t blocked release of
* consent provided by rights holder
* disclosure is made to the rights holder
* statutory exception applies as long as school uses “reasonable methods” to identify the party to whom they disclose the information

Question 12

What constitutes valid student consent to disclosure?

under FERPA

Answer 12

must be signed, dated and written and must (1) identify the records to be disclosed, (2) purpose of disclosure and (3) to whom the disclosure is being made

Question 13

What are the statutory exceptions under which a school can disclose PII from an education record without student consent?

Answer 13

• disclosure to school officials who have determined a legitimate educational interest: if record is relevant and necessary to their responsibilities
• disclosure to educational institution in which a students seeks/intends to/currently is enrolled, when disclosure for purpose related to student’s enrollment or transfer
• disclosure in connection with financial aid that the student has received or for which the student will apply, when the purpose of the disclosure is to determine the student’s eligibility for aid, conditions to obtain aid, or amount of financial aid
• disclosure to organizations doing research studies for, or on behalf of, educational institutions for the purpose of developing predictive tests, administering student aid programs, or improving school instruction
• disclosure to accrediting organizations to fulfill accrediting duties.
• disclosure to the alleged victim of a forcible or nonforcible sex offense
• disclosure of information related to sex offenders and others when the information is provided to the school under federal registration and disclosure requirements.
• disclosure to a person or entity that is verified as the party that provided or created that record
• disclosure to law enforcement or otherwise to comply with a judicial order or subpoena (but school must make reasonable efforts to notify the student prior to the disclosure, unless it is a legal matter that orders nondisclosure)
• disclosure to appropriate parties in connection with a health or safety emergency, if knowledge of this info necessary to project health or safety of student or others where the harm is articulable and significant (rational basis standard)

Question 14

What rights do students/parents have under FERPA?

Answer 14

• control disclosure of their education records to others
• access, review and seek amendment of their own education records
• receive annual notice of their rights under FERPA
• file complaints with the DoE

Question 15

Define:

right to access and review education records

under FERPA

Answer 15

educational institution must provide access to record within 45 days of request and respond to reasonable request for explanations of records

Question 16

Define:

right to request corrections to education records

Answer 16

if student believes record is inaccurate, misleading or in violation of their privacy
* if request granted, record must be corrected within a reasonable time
* if request denied, student can request a hearing
* if hearing affirms, student’s request, record must be amended and student notified; if request denied, institution must notify student of their right to place a written statement in the file about the contested record

Question 17

What are the requirements for a hearing in which a student’s request to amend their education record was denied?

Answer 17

• student must receive prior and reasonable notice of the time, place and date
• hearing is held within reasonable time after request
• hearing conducted by party without direct interest in outcome
• student given “full and fair” opportunity to present their case, with or without assistance or representation
• decision must be based on evidence presented at hearing, delivered in writing, within a reasonable amount of time after hearing, and must contain a summary and explanation for the decision

Question 18

What action can a student/parent take under FERPA?

Answer 18

• no private right of action
• can file formal complaints with Department of Education

Question 19

Does FERPA preempt state law?

Answer 19

no

Question 20

Define:

Protection of Pupil Rights Amendment of 1978

Answer 20

provides certain rights to parents of minors with regard to the collection of sensitive information from students through surveys, including:
* political affiliations
* mental and psychological problems potentially embarrassing to the student and their family
* sex behavior and attitudes
* illegal, antisocial, self-incriminating, and demeaning behavior
* critical appraisals of other individuals with whom respondents have close family relationships
* legally recognized privileged or analogous relationships (lawyer, physician, etc.)
* religious practices, affiliations or beliefs of student/student’s parent
* income (other than required by law for determining eligibility for program)

Question 21

Who does the Protection of Pupil Rights Amendment apply to?

Answer 21

all K-12 schools that receive federal funding (not colleges or universities)

Question 22

Define:

No Child Left Behind Act of 2001

Answer 22

broadened PPRA to limit the collection and disclosure of student survey information by requiring schools to:
* enact policies regarding the collection, disclosure or use of personal information about students for commercial purposes
* allow parents to access and inspect surveys and other commercial instruments before they are administered to students
* provide advance notice to parents about the approximate date when these activities are scheduled
* provide parents the right to opt out of surveys or other sharing of student information for commercial purposes

Question 23

Define:

Individuals with Disabilities Education Act (IDEA)

Answer 23

federal law that ensures eligible students (ages 3-12) receive a free appropriate public education (FAPE)
* requires schools to provide special education services that are tailored to each eligible student through the student’s individualized education program (IEP)
* provides parent or adult students with the right to inspect educational records, to request explanation of educational records and ask that educational records be amended

Question 24

How does the HIPAA Privacy Rule interact with FERPA?

Answer 24

final version of HIPAA Privacy Rule exempted schools where educational records were already subject to the privacy regime of FERPA → general rule is that health records are subject to FERPA where a public elementary or secondary school provides a nurse for student health issues

Question 25

Define:

education technology

Answer 25

computer software, mobile applications and web-based tools to educators, students and parents

Question 26

FERPA and EdTech: Google

Answer 26

• in 2014, students in CA who used Google’s Apps for Education sued Google, accusing the company of scanning millions of emails sent to and received by students → Google agreed to change business practices after assertion that Google violated FERPA
• also led U.S. DoE to issue guidelines in 2014: instructs schools and universities to determine on a case-by-case basis whether the edtech companies they partner with utilize FERPA-protected data, and if so, they must ensure FERPA requirements are met

Question 27

COPPA and Edtech: FTC announcement

Answer 27

FTC in 2022 announced it would concentrate its scrutiny of potentially illegal practices of edtech companies through enforcement of COPPA, including:
* prohibiting use for commercial purposes
* prohibiting unreasonable mandatory collection
* prohibiting inappropriate retention
* COPPA requires edtech companies to have procedures related to the confidentiality, security and integrity of children’s personal data

Question 28

Define:

Student Privacy Pledge 2020

Answer 28

self-regulation that includes specific provisions, including prohibition on selling student personal information, ban on using info collected in schools for behavioral targeting of ads to students and ban on building profiles of students for any purpose other than authorized educational purposes

Question 29

What sort of cybersecurity requirements do schools face?

Answer 29

• K-12 schools and universities encouraged to implement relevant guidelines in NIST framework
  1. under FERPA, schools expected to take reasonable security measures to protect student records and data breaches can lead to violations of FERPA
• universities in possession of financial aid to covered by Gramm-Leach-Bliley Act (GLBA) as financial institutions