October 28, 2002

Recent Changes Affecting FERPA & PPRA

The following document presents a general explanation of the recent
changes to the Family Educational Rights and Privacy Act (FERPA) and the
Protection of Pupil Rights Amendment (PPRA) made by Congress. It also
provides a general description of the two U.S. Supreme Court cases
involving FERPA, and a recent decision by the U.S. Court of Appeals for
the Sixth Circuit. The Department will issue guidance and/or regulations
to provide the public with interpretations of these changes, as
necessary.

**U.S. Supreme Court Ruling**

On February 19, 2002, the U.S. Supreme Court ruled in [Owasso ISD v.
Falvo]{.underline} that peer grading does not violate FERPA. The
Department is currently reviewing the Court's ruling and may issue
additional guidance or regulations to further clarify the scope of the
term "education records."

## U. S. Supreme Court Ruling

On June 20, 2002, the U.S. Supreme Court ruled in [Gonzaga University v.
John Doe]{.underline}. In the Gonzaga case, a student brought litigation
against the University for disclosing personally identifiable
information, without his consent, in violation of FERPA. The Supreme
Court ruled that students and parents may not sue for damages under 42
U.S.C. § 1983 to enforce provisions of the Family Educational Rights and
Privacy Act (FERPA).

## U.S. Court of Appeals for the Sixth Circuit

On June 27, 2002, the 6^th^ Circuit Court of Appeals unanimously
affirmed a lower court's ruling that university disciplinary records are
"education records" under FERPA and that disclosing such records without
students' consent constitutes a violation of FERPA. In 1998, the
Department asked a federal district court in Ohio to enjoin Miami
University and the Ohio State University from disclosing records
containing the names of student victims and accused students as
prohibited under FERPA. On March 20, 2000, the U.S. District Court for
the Southern District of Ohio permanently enjoined the two Ohio
universities from disclosing their on-campus disciplinary records to the
public under the State's open records law.

In affirming the ruling, the circuit court concluded that continued
release of student disciplinary records "will irreparably harm the
United States" and the Department. This is important for three
reasons: 1) the court agreed with the lower court that the Student
Right-to-Know and Campus Security Act provides parents and students with
statistical information about the type and amount of crimes on campus;
2) the court reaffirmed the Department's broad reading of the term
"education records" and stated that Congress, in amending FERPA in 1998
to allow postsecondary institutions to disclose the final results of
disciplinary proceedings, must have intended that disciplinary records
be education records or this amendment would be "superfluous"; and 3)
the court held that the Department was within its right in seeking an
injunctive relief in this case because none of the administrative
remedies authorized by FERPA would have stopped the violations. In
effect, the court held that the Department can take preemptive actions
in enforcing FERPA, rather than only after violations occur.

## Background on FERPA

FERPA is a federal law that applies to educational agencies and
institutions that receive federal funds under any program administered
by the Secretary of Education. Generally, FERPA prohibits the funding of
an educational agency or institution that has a policy or practice of
disclosing a student's "education record" without the consent of the
parent or eligible student. The FERPA statute is found in 20 U.S.C. §
1232g and the regulations (not yet amended to reflect the most recent
legislative changes) are found in 34 CFR Part 99.

# No Child Left Behind Act of 2001

## Sec. 1061 Annual Notification Requirements for the Secretary of Education

The Secretary is now required to annually inform each SEA and each LEA
of their obligations under both FERPA and PPRA. This provision is found
in § 1061(c)(5)(C), which are the amendments to PPRA, discussed below.
The Family Policy Compliance Office (FPCO) is in the process of
finalizing the notices to be provided to SEAs and LEAs. The information
will also be posted on our Web site.

**Sec. 4155 Transfer of School Disciplinary Records.**

FERPA currently [permits]{.underline} schools to transfer any and all
education records, including disciplinary records, on a student who is
transferring to another school. See § 99.31(a)(2) and § 99.34 of the
FERPA regulations. This new provision [requires]{.underline} States that
receive funds under the Elementary and Secondary Education Act (ESEA),
within two (2) years, to provide an assurance to the Secretary that the
State "has a procedure in place to facilitate the transfer of
disciplinary records, with respect to a suspension or expulsion, by
local educational agencies to any private or public elementary school or
secondary school for any student who is enrolled or seeks, intends, or
is instructed to enroll, on a full- or part-time basis, in the school."

FPCO is including an announcement in the notice to SEAs and LEAs about
this new provision so that SEAs and LEAs can start to implement the new
requirement.

**Sec. 9528 Armed Forces Recruiter Access to Students and Student
Recruiting Information.**

FERPA currently [allows]{.underline} schools to designate and disclose
without consent certain items of information as "directory information."
The FERPA regulations define "directory information" under § 99.3 of the
regulations and set forth the requirements for implementing a "directory
information" policy under § 99.37 of FERPA. Generally, "directory
information" may be disclosed by a school to any party, provided the
requirements of FERPA are followed.

Congress passed a provision in the *No Child Left Behind Act* that
addresses the disclosure of directory-type information (students' names,
addresses, and telephone listings) to military recruiters. Congress also
included similar language in the *National Defense Authorization Act for
Fiscal Year 2002*. Both laws, with some exceptions,
[require]{.underline} schools to provide directory-type information to
military recruiters who request it. Typically, recruiters are requesting
names, addresses, and telephone listings on junior and senior high
school students that will be used for recruiting purposes and college
scholarships offered by the military.

The Department, in consultation with the Department of Defense, has
developed guidance on the provisions contained in these two laws. The
guidance has been made available to SEAs and LEAs, as well posted on our
Web site:
<http://www.ed.gov/policy/gen/guid/fpco/hottopics/ht10-09-02.html>.

Sec. 1061 Student Privacy, Parental Access to Information, and
Administration of Certain Physical Examinations to Minors.

The *No Child Left Behind Act* contains a major amendment to PPRA that
gives parents more rights with regard to the surveying of minor
students, the collection of information from students for marketing
purposes, and certain non-emergency medical examinations. PPRA has been
referred to as the "Hatch Amendment" and the "Grassley Amendment" after
authors of amendments to the law. Now, school officials may hear the law
referred to as the "Tiahrt Amendment" after Congressman Todd Tiahrt, who
introduced the changes regarding surveys to the PPRA. The statute is
found in 20 U.S.C. § 1232h and the regulations (not yet updated) are
found in 34 CFR Part 98.

## U.S. Department of Education Surveys

Subsection (a) of the legislation was not changed. Subsection (b) added
an additional category (see bold below) and made minor changes to the
existing seven categories. This provision applies to surveys funded in
whole or part by any program administered by the U. S. Department of
Education (ED). PPRA provides:

-   that schools and contractors make instructional materials available
    for inspection by parents if those materials will be used in
    connection with an ED-funded survey, analysis, or evaluation in
    which their children participate; and

-   that schools and contractors obtain prior written parental consent
    before minor students are required to participate in any ED-funded
    survey, analysis, or evaluation that reveals information concerning:

1.  political affiliations or beliefs of the student or the student's
    parent;

2.  mental and psychological problems of the student or the student's
    family;

3.  sex behavior or attitudes;

4.  illegal, anti-social, self-incriminating, or demeaning behavior;

5.  critical appraisals of other individuals with whom respondents have
    close family relationships;

6.  legally recognized privileged or analogous relationships, such as
    those of lawyers, physicians, and ministers;

7.  **religious practices, affiliations, or beliefs of the student or
    student's parent;** or

8.  income (other than that required by law to determine eligibility for
    participation in a program or for receiving financial assistance
    under such program).

Subsections a and b of PPRA generally apply when a survey is funded, at
least in part, by any program administered by the Secretary of
Education.

## Surveys Funded by Sources Other than U.S. Department of Education

The new provisions (contained in subsection c) apply (as does FERPA) to
educational agencies or institutions that receive funds from
[any]{.underline} program of the Department of Education. Thus, public
elementary and secondary schools are subject to the new provisions of
PPRA. Here are the new requirements:

-   Schools are required to develop and adopt policies -- in conjunction
    with parents -- regarding the following --

1.  The right of parents to inspect, upon request, a survey created by a
    third party before the survey is administered or distributed by a
    school to students.

2.  Arrangements to protect student privacy in the event of the
    administration of a survey to students, including the right of
    parents to inspect, upon request, the survey, if the survey contains
    one or more of the same eight items of information noted above.

3.  The right of parents to inspect, upon request, any instructional
    material used as part of the educational curriculum for students.

4.  The administration of physical examinations or screenings that the
    school may administer to students.

5.  The collection, disclosure, or use of personal information collected
    from students for the purpose of marketing or selling, or otherwise
    providing the information to others for that purpose.

6.  The right of parents to inspect, upon request, any instrument used
    in the collection of information, as described in number 5.

-   Local educational agencies (LEAs) must "directly" notify parents of
    these policies and, at a minimum, shall provide the notice at least
    annually, at the beginning of the school year. The LEA must also
    notify parents within a reasonable period of time if any substantive
    change is made to the policies.

-   In the notification, the LEA shall offer an opportunity for parents
    to opt out of (remove their child) from participation in the
    following activities:

    -   Activities involving the collection, disclosure, or use of
        personal information collected from students for the purpose of
        marketing or for selling that information, or otherwise
        providing that information to others for that purpose.

    -   The administration of any third party (non-Department of
        Education funded) survey containing one or more of the above
        described eight items of information.

    -   Any non-emergency, invasive physical examination or screening
        that is: 1) required as a condition of attendance; 2)
        administered by the school and scheduled by the school in
        advance; and not necessary to protect the immediate health and
        safety of the student, or of other students.

-   In the notification, the LEA shall notify parents the specific or
    approximate dates during the school year when these activities are
    scheduled.

-   An LEA is not required to develop and adopt new policies if the
    State educational agency (SEA) or LEA has in place, on the date of
    enactment of the *No Child Left Behind Act of 2001*, policies
    covering the requirements set forth in this law.

-   The requirements concerning activities involving the collection and
    disclosure of personal information from students for marketing
    purposes do not apply to the collection, disclosure, or use of
    personal information collected from students for the exclusive
    purpose of developing, evaluating, or providing educational products
    or services for, or to, students or educational institutions, such
    as the following:

    -   College or other postsecondary education recruitment, or
        military recruitment.

    -   Book clubs, magazines, and programs providing access to low-cost
        literacy products.

    -   Curriculum and instructional materials used by elementary
        schools and secondary schools.

    -   Tests and assessments used by elementary schools and secondary
        schools to provide cognitive, evaluative, diagnostic, clinical,
        aptitude, or achievement information about students.

    -   The sale by students of products or services to raise funds for
        school-related or education-related activities.

    -   Student recognition programs.

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-   This law is not intended to preempt applicable provisions of State
    law that require parental notification.

-   This law does not apply to any physical examination or screening
    that is permitted or required by State law, including such
    examinations or screenings permitted without parental notification.

-   The requirements of PPRA do not apply to a survey administered to a
    student in accordance with the Individuals with Disabilities
    Education Act (IDEA).

-   These requirements do not supersede any of the requirements of
    FERPA.

-   The rights provided to parents under PPRA transfer from the parent
    to the student when the student turns 18 years old or is an
    emancipated minor under applicable State law. The law applies to
    LEAs, but does not apply to postsecondary institutions.

-   An SEA or LEA may use funds provided under part A of title V of the
    ESEA to enhance parental involvement in areas affecting the
    in-school privacy of students.

## Definition of some terms used in PPRA --

"Instructional Material" -- instructional material that is provided to a
student, regardless of format, including printed or representational
materials, audio-visual materials, and materials in electronic or
digital formats (such as materials accessible through the Internet). The
term does not include academic tests or academic assessments.

"Invasive Physical Examination" -- any medical examination that involves
the exposure of private body parts, or any act during such examination
that includes incision, insertion, or injection into the body, but does
not include a hearing, vision, or scoliosis screening.

"Personal Information" -- individually identifiable information
including: 1) a student or parent's first and last name; 2) home
address; 3) telephone number; or 4) social security number.

The Department will issue regulations to reflect the changes in FERPA
and PPRA. The Family Policy Compliance Office (FPCO) in the Department
of Education administers both FERPA and PPRA. Informal inquiries may be
sent to FPCO via the following email addresses: <FERPA@ED.Gov> and
<PPRA@ED.Gov>.