Ask the FERPA Professors

I received a response back last week from the Department of Education regarding the scholarship question.  Based on the information provided by the Department, here is a response to your question.

Q&A 1. Scholarship Donor Requests

Q1: Many of our institutional scholarship donor requests want to award based on non-directory information (ex: GPA, academic standing, etc). Is it appropriate to share student names who meet the criteria as long as we are not providing the student-specific criteria (GPA)? The concern is if the parameters are only students in Good Standing and a 3.0 GPA and we give them a list of student names, that on some level they now know Student A is in good standing and has a specific enough GPA.

A1: There are two exceptions to FERPA’s general consent requirement that are relevant to your question:  (1) disclosure of directory information and (2) financial aid exception to consent.

As you recognize, the institution may not share non-directory information, such as students’ individual GPAs, with scholarship donors, without consent of the eligible students.  However, the Department has stated that a school could, under FERPA’s “directory information” exception to the general prior consent requirement, disclose the top 10% or a similar range or ranking on students if the eligible students have not opted out of the disclosure of directory information.  Under the directory information exception, such information could be considered an “honor or an award” as long as the specific GPA is not disclosed.  Thus, in your situation, it is conceivable that you could disclose a list of students' names whose GPAs are 3.0 or above, as long as specific GPAs are not disclosed, have a directory information policy that includes such ranking as an “honor or an award,” and eligible students have not opted out of the disclosure of directory information.  For those students who have opted out, the institution would need to get consent before disclosing the information to the donors.  With respect to the disclosure that a student is in “good standing,” it is unclear what this means and what specific PII is being disclosed to a donor from a student’s education records.   Do students’ education records specifically state whether a student is in “good standing,” or is this a determination of a student’s standing based on various factors that may or may not be included in student records?  What does this designation relay to the donor that would constitute a disclosure of PII from students’ education records; for example, financial information or disciplinary information?  Whether “good standing” could be considered directory information is unclear and would require further consideration. 

As you know, FERPA includes a specific exception to the general consent requirement that allows educational institutions to disclose PII from education records in connection with “financial aid for which the student has applied or which the student has received,” if the information is necessary to determine eligibility for the aid, determine the amount of the aid, determine the conditions of the aid, or enforce the terms and conditions of the aid.  This exception is codified under § 99.31(a)(4) of the FERPA regulations.  It is unclear from your inquiry whether the students in question have actually applied for the scholarships or whether donors are seeking a list of all students in the institution who have a 3.0 GPA.  If a student has applied for a scholarship, it appears it would be permissible for the institution to disclose to the donor any PII from the student’s education records necessary for the donor to determine the student’s eligibility for the scholarship.  If donors are seeking a list of all students with the requested information, then the directory information exception, as discussed above, would be the only other option to non-consensually disclose the student information.

Q&A 2 Job Placement Information – Career Services

Q2: Our Career Services office is getting more inquiries from parents on discussing job placement status. Would a FERPA consent/authorization be recommended for this type of scenario?

A2: Thank you for the additional information regarding the Career Services staff sharing of information with parents of current students.  Below is a response. 

FERPA generally requires that once a student becomes an "eligible student" (at least 18 years old or attending a postsecondary institution), all rights transfer from the parent to the student, including the right to consent to disclosure of PII from education records. 

However, FERPA provides a specific exception for dependent students.  FERPA permits, but does not require, institutions to disclose PII from an eligible student’s education records without the consent of the student, if the student is claimed as a dependent for tax purposes.  This exception is codified in 34 CFR 99.31(a)(8).   Based on the clarification from the Career Services Director, it does appear that some of the conversations and much of the information shared with parents may be contained in students’ education records.   As Career Services staff are school officials and they are maintaining a record of a student’s job placement status, jobs applied for, events attended, etc., the records would most likely meet the definition of an education records as the records are directly related to a student and being maintained by the institution, and they do not meet any of the exemptions to the definition of an “education record.”   Further, as Career Service staff have access to student information contained in the institution’s SIS, there is an increased risk that any conversations with parents may lead to the disclosure of other PII regarding a student’s academic performance, such as grades.   Thus, unless the parent claims the student as a dependent for tax purposes, the institution should obtain the prior written consent of the eligible student before disclosing any information to the parent.  For more information on the disclosure of information to parents of eligible students, you may want to review the discussion on pages 36-38 of the 2012 AACRAO FERPA Guide.

I hope this has been helpful.  Please let me know if you need further clarification.

All the best,