Dear FERPA Professor,
I hope you are well and pleased to make your acquaintance. We have a few questions about a case we've been working on regarding the following:
- Our university hosts copies of previous commencement programs on a public-facing website.
- A graduate, whose name is listed in a historical commencement program, no longer wants their name to appear in the commencement program: they are alleging that employers can find that information and use it to discriminate based on age (deduced by graduation year).
- The graduate did not restrict their directory information at the time when they were a student.
- We have competing interpretations of 34 CFR 99.37(b):
- Does it mean former students do not have the right to retroactively restrict their directory information (if it wasn’t restricted at the time of the original disclosure), including the information in the commencement program?
- Does it mean that former students could restrict directory information after providing notice to the institution and the institution would need to honor that request moving forward?
- There is a further split: because the programs are being actively hosted on a website, should they be considered a past disclosure or a current disclosure?
- The last point of contention is whether the record would be eligible for the amendment process. It is a record, and the graduate believes it is “in violation of the privacy rights of the student” (34 CFR 99.21(a)).
We appreciate any guidance you are willing to provide.
Dear Mr. Cine,
Concerning your questions, the directory information exception to signed consent found at § 99.37 in the FERPA regulations applies to current students and the actions of current students. § 99.37(b) simply requires that an institution continue to honor any directory information opt-out that a student had in place when leaving the institution. Thus, your institution could, but would not be required to, honor the request of a former student to restrict that student's directory information status. In addition, the University would not be required to amend its past commencement programs based on this request, nor would the student's name on the historic document be subject to the amendment process.
I hope this is helpful in answering your questions. The above-cited regulations can be found on page 166 of the 2012 AACRAO FERPA Guide
The FERPA Professor