AACRAO comments on FERPA NPRM
July 30, 1999
LeRoy Rooker
U.S. Department of Education
400 Maryland Avenue, SW.
Washington, D.C. 20202-4605
Dear Mr. Rooker:
The American Association of Collegiate Registrars and Admissions Officers (AACRAO) is pleased to have been given the opportunity to participate in negotiated rulemaking for regulations associated with implementation of Sections 951 and 952 of the Higher Education Act. Student records-keepers handle compliance issues regarding FERPA on a daily basis, and privacy issues are of central importance to the profession.
As a good faith provision of participation in negotiated rulemaking, AACRAO acknowledges its role in reaching consensus in that forum on the language of the June 1,1999 Notice of Proposed Rulemaking published by the Department of Education. The Association has compiled for your consideration the following comments, and requests that the Department speak to the comments and questions put forth by AACRAO.
Sec. 99.1
To which educational agencies or institutions do these
regulations apply?
(a) * * ***
(2) The educational agency provides
administrative control of or direction of public elementary or secondary
schools or by postsecondary institutions.
AACRAO Comment: Under Sec.99.1, does the definition of "educational agency" apply to state boards of control as well as to governing boards of multi-campus college and university systems?
Sec. 99.3
What definitions apply to these regulations?
* * * * *
Directory information. (a)(1) The
term means information contained in an education record of a student
that would not generally be considered harmful or an invasion of
privacy if disclosed. It includes, but is not limited to, the student's
name, address, telephone listing, date and place of birth, major
field of study, dates of attendance, grade level, enrollment status
(e.g., undergraduate or graduate; full- time or part-time), participation
in officially recognized activities and sports, weight and height
of members of athletic teams, photograph, degrees, honors and awards
received, and the most recent educational agency or institution
attended.
(2)(i) "Dates of attendance"
refers to the general periods of time during which an individual
attended or was enrolled in an educational agency or institution.
Examples of "dates of attendance" include an academic
year, a spring semester, or a first quarter.
(ii) The term "dates of attendance"
does not include daily specific records of a student's attendance
at an educational agency or institution. A student's attendance
record is not "directory information" and may not be disclosed
without consent under FERPA.
AACRAO Comment: Under Sec.99.3 regarding "directory information" and "dates of attendance," AACRAO extends its appreciation for the clear, practical guidance provided registrars and admissions officers by this language.
Sec. 99.3
Education records.
* * * * *
(b) The term does not include--
Records that are kept in the sole possession of the maker of the record--often called sole possession records-- that are not used for purposes other than a memory or reference tool, that are not accessible or revealed to any other person except a temporary substitute for the maker of the record, and that are typically maintained by the school official unbeknownst to other individuals. Records that contain information taken directly from a student or that are used to make decisions about the student are not sole possession records.AACRAO Comment: Under Sec.99.3 regarding "education records," the language is difficult to understand due to the use of double negatives. AACRAO suggests that an alternative might be:
"b) The term does not include:
(1) Records that are kept in the sole possession of the maker--often called sole possession records--and that are:
i) only used for the maker's purposes of reference or memory recall
ii) accessible to the maker only, or revealed to temporary substitutes for the maker
iii) typically maintained by the maker unbeknownst to other individuals, and
iv) kept in a place that is accessible only to the maker.
For this section, the maker of the record is a Oschool official.Ã"In addition, AACRAO supports the intent of the final sentence of 99.3 (b)(1) for further defining a "sole possession record." One point of clarification that more realistically states the expectation of registrars and admissions officers is that a dialogue with the student regarding his/her information would take place rather than having been "taken from" a student. AACRAO suggests that the last sentence of 99.3 (b)(1) be articulated as follows:
"Records that contain information resulting from dialogue with a student or that are used to make decisions about the student are not sole possession records."
Sec. 99.5
What are the rights of students?
* * * * *
(c) An individual who is or has been a student at an educational agency or institution and who has been rejected for admission by a component of that educational agency or institution does not have rights under this part with respect to records collected and maintained in connection with consideration of that application for admission.
AACRAO Comment: Under Sec.99.5(c), the regulation succeeds in clarifying that if a student is admitted and is enrolled, FERPA is applicable, and if a student is not admitted, FERPA is not applicable. However, the provision does not directly address the question of whether a student has access to an admissions file after being accepted but who is not yet enrolled. AACRAO suggests alternative language as follows that would encompass those accepted but not yet enrolled:
"An individual who is or has been a student at an educational agency or institution and who has applied to another component of that educational agency or institution does not have rights under this part with respect to records collected and maintained in connection with the application for admission to that component, until such time as the student is enrolled in that component of the educational agency or institution."
Sec. 99.31
Under what conditions is prior consent not required to
disclose information?
(a) * * *
(3) The disclosure is, subject to
the requirements of Sec. 99.35,
to authorized representatives of-- (i)
The Comptroller General of the United States;
(ii) The Attorney General of the United
States (for law enforcement
purposes);
(iii) The Secretary; or
(iv) State and local educational authorities.
* * * * *
AACRAO Comment: Under Sec.99.31(a)(3)(ii), the addition of the Attorney General to conditions where prior consent is not required for disclosure is clearly for purposes of law enforcement only. However, AACRAO is concerned that registrars and records-keepers may not know how to identify representatives acting on behalf of the Attorney General, nor how to verify that such a request for information is for law enforcement purposes only. AACRAO suggests that a form documenting the circumstances supporting the Attorney GeneralÃs request for an education record (as well as the appropriate demographic information) be developed by the Attorney General in conjunction with representatives of the Department of Education Family Policy Compliance Office, AACRAO and the National Association of College and University Attorneys (NACUA). Such a collaboration on the form will facilitate the timely compliance with the Attorney GeneralÃs request. It will also serve to offset potential tension on campuses regarding such requests, and will assist professionals with the record-keeping requirement of FERPA.
AACRAO also requests a response regarding the way(s) in which this provision is different than the provision for obtaining a subpoena. Is this provision intended to decrease the amount of time it takes to obtain education record information?
Sec. 99.31
(8)(i) The disclosure is to parents of a dependent student, as defined
in section 152 of the Internal Revenue Code of 1986.
(ii) The educational agency or institution
may disclose information under paragraph (a)(8)(i) of this section
to either parent of a dependent student, regardless of which parent
claims the student as a dependent.
* * * * *
AACRAO Comment: Under Sec.99.31(8), is it assumed that only two people will be involved or is there the possibility that more than two people might be involved with one student's education records? For example, can a parent claim a student as a dependent on an income tax form and can a student, at the same time, have a legally appointed guardian? If this is the case, the word "either" would be inappropriate since this word implies only two individuals. In this case, there would be three different individuals with parental status: 1) legal guardian, 2) parent claiming student as dependent, and 3) biological parent not claiming student as dependent.
Sec. 99.31
(13) The disclosure is in connection with a disciplinary proceeding
conducted by an institution of postsecondary education against a
student who is an alleged perpetrator of a crime of violence subject
to Sec. 99.39.
AACRAO Comment: Under Sec.99.31(13), AACRAO appreciates that this new provision permits each institution to decide for itself whether information will be released, and to whom.
Sec. 99.39
What conditions apply to disclosure of records pertaining to disciplinary
proceedings? (NEW)
(a) An institution of postsecondary
education may disclose the final results of a disciplinary proceeding
conducted by the institution concerning an allegation of a crime
of violence against a student who is an alleged perpetrator of a
crime of violence, without the prior written consent of the student,
if the institution determines as a result of that disciplinary proceeding
that the student committed a violation of the institution's rules
or policies with respect to that crime.
(b) As used in this part:
Crime of violence, as that term is
defined in section 16 of title 18, United States Code, means an
offense that has as an element the use, attempted use, or threatened
use of physical force against the person or property of another,
or any other offense that is a felony and that, by its nature, involves
a substantial risk that physical force against the person or property
of another may be used in the course of committing the offense.
It includes, but is not limited to, the following offenses: criminal
homicide, forcible sex offense, robbery, aggravated assault, and
arson, as these terms are defined in appendix E to 34 CFR part 668,
as well as burglary of an occupied structure or dwelling and kidnapping.
Final results means only the name
of the student charged, the violation committed, and any sanction
imposed by the institution on the student.
(c) The institution must not disclose
the name of any other student, such as a victim or witness, without
the prior written consent of that other student.
(d) This section applies to disclosures
made or to requests received by an institution of postsecondary
education on or after October 1, 1998.
AACRAO Comment: The addition of Sec.99.39 provides very specific guidelines that clarify the conditions under which results of a disciplinary proceeding can be released without written permission of the student involved. The definition of "crime of violence" is helpful to school officials in determining whether 99.39 applies.
Sec. 99.31
(14)(i) The disclosure is to a parent or a legal guardian of a student
at an institution of postsecondary education regarding the student's
violation of any Federal, State, or local law, or of any rule or
policy of the institution, governing the use or possession of alcohol
or a controlled substance if--
(A) The student is under the age of
21; and
(B) The institution determines that
the student has committed a disciplinary violation with respect
to that use or possession.
(ii) Paragraph (a)(14)(i) of this
section does not supersede any provision of State law that prohibits
an institution of postsecondary education from making the disclosure
permitted in this section.
(b) This section does not forbid an
educational agency or institution from disclosing, nor does it require
an educational agency or institution to disclose, personally identifiable
information from the education records of a student to any parties
under paragraphs (a)(1) through (11) and (13) through (14) of this
section.
AACRAO Comment: Under Sec.99.31(14), there is no mention of dependency; therefore, it can be concluded that it was Congressà intent to permit disclosure to parents or guardians of both dependent and independent students who: 1) are under the age of 21 2) according to the institution, committed a disciplinary violation with respect to the use or possession of alcohol or a controlled substance.
AACRAO suggests that the language include a reference to this intent of Congress as follows: "The disclosure is to a parent or a legal guardian of a student, regardless of the student's dependency status, at an institution of postsecondary education...."
On behalf of AACRAO, I extend our appreciation to the Department of Education for the opportunity to comment on proposed regulations regarding FERPA. We look forward to a strong, ongoing relationship with the Family Policy Compliance Office.
Sincerely,
Jerry Sullivan
Executive Director