FERPA: Noting student misconduct on transcripts

In recent weeks, many AACRAO members and the AACRAO office itself have received media inquiries regarding how student misconduct information is reported and transmitted during the transfer process. An article in the Huffington Post, “How Colleges Let Sexual Predators Slip Away to Other Schools,” details a number of incidents where students were accused of sexual misconduct specifically, but allowed to withdraw and/or transfer before the conclusion of disciplinary investigations and thus ‘escape’ the ramifications of a guilty determination. The article linked above argues that mandating some sort of notation, be it on the transcript or otherwise, is necessary to curb this sort of behavior and to effectively track sexual predators within the postsecondary system. There is every reason to protect students from predators – however, there are several practices to keep in mind when proceeding with more stringent policies on recordation and release of disciplinary actions. As any registrar can attest to, some of the foremost factors to consider when evaluating or changing current institutional policy are the requirements set forth by the Family Educational Rights and Privacy Act (FERPA).

Compliance issues

FERPA requires institutions to treat disciplinary records as part of the education record. This requirement was confirmed by the U.S Court of Appeals for the Sixth Circuit in a 2002 decision. As such, disciplinary records, if created by the institution, are required by FERPA to be recorded and maintained by the institution just like any other academic document. Additionally, the record cannot be disclosed without signed consent from the student unless certain conditions are met, as outlined in FERPA. For example, §99.31(a)(14) allows disclosure to appropriate parties, such as law enforcement, if the student is determined in violation of the student code  with a crime of violence or non-forcible sex offense. Also, the “Health and Safety Emergency Exception” exception detailed in §99.36 states that information within the record can be disclosed if the school official determines that specific information can be linked to the resolution or prevention of a current or impending health and safety emergency. If no final determination of guilt or violation is made, or it is pending, no disclosure can take place unless there is an emergency as outlined above.

However, disclosing information about a transfer student to an institution where the student seeks or intends to enroll, as per section 99.31(a)(2), is a much simpler matter, since the entire education record can be shared and reviewed by appropriate school officials. If any pending or concluded disciplinary investigations on the transferring student raise concerns, there is nothing preventing the sending institution from transmitting the details of the disciplinary records. FERPA also permits receiving institutions to screen for and, if necessary, request disciplinary records during the application process. One important note, according to Tina Falkner, Director of Compliance and Continuity at the University of Minnesota--Twin Cities and AACRAO Vice President, is that "institutions still need to inform students of such disclosures, either in their annual notice of FERPA rights or by directly contacting the student."  

Notes on notation

How and if that information gets conveyed is a different story. There is no definitive law or general practice on notation and notification; ultimately it is up to the institution to set its own policy and to follow it. Typically, institutions do not place notations on their transcripts, and most sending institutions do not, as a matter of course, include disciplinary records during the transfer process. Having said that, nothing in FERPA (or any other law, for that matter) prevents an institution from placing a notation on the academic transcript. Since this document is integral in the transfer process, it is likely the most visible and immediate means of transmitting such information. But as Sue Nelson and Julie Ferguson put it in the AACRAO 2011 Academic Record and Transcript Guide, such notations are not always recommended for a variety of reasons; “In almost all disciplinary matters, detailed supporting information is not included on the transcript, thus making the notation non-specific and potentially punitive. In addition, the information does not provide the recipient of the official transcript sufficient information to distinguish the nature or the severity of the disciplinary action.”  

That is not to say the notation must be completely non-descriptive, however. Brad Myers, the University Registrar at the Ohio State University and AACRAO President, indicated that Ohio State places a notation on the transcript if the student was dismissed or suspended from the institution for academic or disciplinary reasons, but not for more minor infractions. Naturally, full details are not on the transcript but if a notation like the one described above is made available to the receiving institution, it provides the opportunity for the recipient of the transcript to decide if and how to follow up. "This might be done directly with the student and/or with Ohio State," said Myers.

To reiterate, there are guidelines in FERPA pertaining to disclosure that must be adhered to. That withstanding, institutions are still able to determine their own policies regarding disciplinary records disclosure and notation. Considering the increased media coverage of this current industry practice, AACRAO and the Board of Directors will be evaluating this standard. A member survey will be released in the coming months, and more communication with the Board will be forthcoming.