41852 Federal Register / Vol. 65, No. 130 / Thursday, July 6, 2000 / Rules and Regulations

DEPARTMENT OF EDUCATION

34 CFR Part 99

Family Educational Rights and Privacy

AGENCY: Department of Education.

ACTION: Final regulations.

SUMMARY: The Secretary amends the

regulations implementing the Family

Educational Rights and Privacy Act

(FERPA). The amendments are needed

to implement sections 951 and 952 of

the Higher Education Amendments of

1998 (HEA). These amendments permit

postsecondary institutions to disclose

certain information to the public and to

parents of students.

DATES: These regulations are effective

August 7, 2000.

FOR FURTHER INFORMATION CONTACT:

Ellen Campbell, U.S. Department of

Education, 400 Maryland Avenue, SW.,

Washington, DC 20202–4605.

Telephone (202) 260–3887. If you use a

telecommunications device for the deaf

(TDD), you may call the Federal

Information Relay Service (FIRS) at 1–

800–877–8339.

Individuals with disabilities may

obtain this document in an alternative

format (e.g., Braille, large print,

audiotape, or computer diskette) on

request to the contact person listed in

the preceding paragraph.

SUPPLEMENTARY INFORMATION: On June 1,

1999, the U.S. Department of Education

(the Department or we) published a

notice of proposed rulemaking (NPRM)

in the Federal Register (64 FR 29532).

In the preamble to the NPRM, we

invited interested persons to submit

comments and recommendations,

particularly on the proposed regulatory

definitions of ‘‘crime of violence’’ and

‘‘final results’’ under § 99.39 and the

provisions concerning nonconsensual

disclosure of information to parents and

guardians under § 99.31(a)(14).

We also proposed the following major

changes in the NPRM to incorporate

statutory provisions added by the HEA:

• Permit disclosure of education

records to authorized representatives of

the U.S. Attorney General in specified

circumstances.

• Permit non-consensual disclosure

of the final results of a disciplinary

proceeding against a postsecondary

student in specified circumstances.

• Permit non-consensual disclosure

to parents and legal guardians of

students under the age of 21 of

information regarding a student’s

violation of laws or policies governing

the use or possession of alcohol or a

controlled substance.

These final regulations have

significant changes from those proposed

in the NPRM. We have provided more

detail regarding the crime of violence

provision. Specifically, we have

included a list of crimes of violence and

non-forcible sex offenses. We have also

clarified when results become ‘‘final’’

and what categories of information may

be disclosed under this provision. These

changes are discussed in more detail in

appendix B.

Analysis of Comments and Changes

In response to the Secretary’s

invitation in the NPRM, 42 parties

submitted comments on the proposed

regulations. In appendix B, we analyze

and summarize these comments and

describe changes to the regulations. We

discuss substantive issues under the

sections of the regulations to which they

pertain. Generally, we do not address

technical changes and other suggestions

that the law does not authorize us to

make.

Paperwork Reduction Act of 1995

These regulations do not contain any

information collection requirements.

Assessment of Educational Impact

In the NPRM, we requested comments

on whether the proposed regulations

would require transmission of

information that any other agency or

authority of the United States gathers or

makes available.

Based on the response to the NPRM

and on our review, we have determined

that these final regulations do not

require transmission of information that

any other agency or authority of the

United States gathers or makes

available.

Electronic Access to This Document

You may view this document, as well

as all other Department of Education

documents published in the Federal

Register, in text or portable document

format (PDF) on the Internet at the

following sites:

http://cfco.ed.gov/fedreg.htm

http://www.ed.gov/news.html

To use PDF you must have Adobe

Acrobat Reader, which is available for

free at either of the previous sites. If you

have questions about using PDF, call the

U.S. Government Printing Office (GPO)

toll free at 1–888–293–6498, or in the

Washington, DC area at (202) 512–1530.

You may also find these regulations,

as well as additional information about

FERPA, on the following Web site:

http://www.ed.gov/offices/OM/fpco/

Note: The official version of this document

is the document published in the Federal

Register. Free Internet access to the official

edition of the Federal Register and the Code

of Federal Regulations is available on GPO

Access at:

http://www.access.gpo.gov/nara/

index.html

(Catalog of Federal Domestic Number does

not apply.)

List of Subjects in 34 CFR Part 99

Administrative practice and

procedure, Education, Information,

Parents, Privacy, Records, Reporting and

record-keeping requirements, Students.

Dated: June 28, 2000.

Richard W. Riley,

Secretary of Education.

For the reasons discussed in the

preamble and appendix B, the Secretary

amends part 99 of title 34 of the Code

of Federal Regulations as follows:

PART 99—FAMILY EDUCATIONAL

RIGHTS AND PRIVACY

1. The authority citation for part 99

continues to read as follows:

Authority: 20 U.S.C. 1232g, unless

otherwise noted.

2. Section 99.1 is amended by revising

paragraph (a)(2) to read as follows:

§ 99.1 To which educational agencies or

institutions do these regulations apply?

(a) * * *

(2) The educational agency is

authorized to direct and control public

elementary or secondary, or

postsecondary educational institutions.

* * * * *

3. Section 99.3 is amended by adding

the definition of ‘‘Dates of attendance’’,

revising the definition of ‘‘Directory

information’’, and by revising paragraph

(b)(1) of the definition of ‘‘Education

records’’ to read as follows:

§ 99.3 What definitions apply to these

regulations?

* * * * *

Dates of attendance. (a) The term

means the period of time during which

a student attends or attended an

educational agency or institution.

Examples of dates of attendance include

an academic year, a spring semester, or

a first quarter.

(b) The term does not include specific

daily records of a student’s attendance

at an educational agency or institution.

(Authority: 20 U.S.C. 1232g(a)(5)(A))

Directory information 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

Federal Register / Vol. 65, No. 130 / Thursday, July 6, 2000 / Rules and Regulations 41853

student’s name, address, telephone

listing, electronic mail address,

photograph, 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,

degrees, honors and awards received,

and the most recent educational agency

or institution attended.

(Authority: 20 U.S.C. 1232g(a)(5)(A))

* * * * *

Education records.

* * * * *

(b) * * *

(1) Records that are kept in the sole

possession of the maker, are used only

as a personal memory aid, and are not

accessible or revealed to any other

person except a temporary substitute for

the maker of the record.

* * * * *

4. Section 99.5 is amended by revising

paragraph (c) to read as follows:

§ 99.5 What are the rights of students?

* * * * *

(c) An individual who is or has been

a student at an educational institution

and who applies for admission at

another component of that institution

does not have rights under this part

with respect to records maintained by

that other component, including records

maintained in connection with the

student’s application for admission,

unless the student is accepted and

attends that other component of the

institution.

* * * * *

5. Section 99.31 is amended by

revising paragraph (a)(3), revising

paragraph (a)(8), revising paragraph

(a)(9)(iii), revising paragraph (a)(13),

adding new paragraphs (a)(14) and

(a)(15), and revising paragraph (b) and

the authority citation to read as follows:

§ 99.31 Under what conditions is prior

consent not required to disclose

information?

(a) * * *

(3) The disclosure is, subject to the

requirements of § 99.35, to authorized

representatives of—

(i) The Comptroller General of the

United States;

(ii) The Attorney General of the

United States;

(iii) The Secretary; or

(iv) State and local educational

authorities.

* * * * *

(8) The disclosure is to parents, as

defined in § 99.3, of a dependent

student, as defined in section 152 of the

Internal Revenue Code of 1986.

* * * * *

(9) * * *

(iii)(A) If an educational agency or

institution initiates legal action against

a parent or student, the educational

agency or institution may disclose to the

court, without a court order or

subpoena, the education records of the

student that are relevant for the

educational agency or institution to

proceed with the legal action as

plaintiff.

(B) If a parent or eligible student

initiates legal action against an

educational agency or institution, the

educational agency or institution may

disclose to the court, without a court

order or subpoena, the student’s

education records that are relevant for

the educational agency or institution to

defend itself.

* * * * *

(13) The disclosure, subject to the

requirements in § 99.39, is to a victim of

an alleged perpetrator of a crime of

violence or a non-forcible sex offense.

The disclosure may only include the

final results of the disciplinary

proceeding conducted by the institution

of postsecondary education with respect

to that alleged crime or offense. The

institution may disclose the final results

of the disciplinary proceeding,

regardless of whether the institution

concluded a violation was committed.

(14)(i) The disclosure, subject to the

requirements in § 99.39, is in

connection with a disciplinary

proceeding at an institution of

postsecondary education. The

institution must not disclose the final

results of the disciplinary proceeding

unless it determines that—

(A) The student is an alleged

perpetrator of a crime of violence or

non-forcible sex offense; and

(B) With respect to the allegation

made against him or her, the student has

committed a violation of the

institution’s rules or policies.

(ii) The institution may not disclose

the name of any other student,

including a victim or witness, without

the prior written consent of the other

student.

(iii) This section applies only to

disciplinary proceedings in which the

final results were reached on or after

October 7, 1998.

(15)(i) The disclosure is to a parent 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 institution determines that

the student has committed a

disciplinary violation with respect to

that use or possession; and

(B) The student is under the age of 21

at the time of the disclosure to the

parent.

(ii) Paragraph (a)(15) of this section

does not supersede any provision of

State law that prohibits an institution of

postsecondary education from

disclosing information.

(b) Paragraph (a) of 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), (13), (14), and (15) of this section.

(Authority: 20 U.S.C. 1232g(a)(5)(A), (b)(1),

(b)(2)(B), (b)(6), (h), and (i))

6. Section 99.33 is amended by

revising paragraph (c) to read as follows:

§ 99.33 What limitations apply to the

redisclosure of information?

* * * * *

(c) Paragraph (a) of this section does

not apply to disclosures made to parents

of dependent students under

§ 99.31(a)(8), to disclosures made

pursuant to court orders, lawfully

issued subpoenas, or litigation under

§ 99.31(a)(9), to disclosures of directory

information under § 99.31(a)(11), to

disclosures made to a parent or student

under § 99.31(a)(12), to disclosures

made in connection with a disciplinary

proceeding under § 99.31(a)(14), or to

disclosures made to parents under

§ 99.31(a)(15).

* * * * *

7. A new section 99.39 is added to

read as follows:

§ 99.39 What definitions apply to the

nonconsensual disclosure of records by

postsecondary educational institutions in

connection with disciplinary proceedings

concerning crimes of violence or nonforcible sex offenses?

As used in this part:

Alleged perpetrator of a crime of

violence is a student who is alleged to

have committed acts that would, if

proven, constitute any of the following

offenses or attempts to commit the

following offenses that are defined in

appendix A to this part:

Arson

Assault offenses

Burglary

Criminal homicide—manslaughter by

negligence

Criminal homicide—murder and

nonnegligent manslaughter

41854 Federal Register / Vol. 65, No. 130 / Thursday, July 6, 2000 / Rules and Regulations

Destruction/damage/vandalism of

property

Kidnapping/abduction

Robbery

Forcible sex offenses.

Alleged perpetrator of a nonforcible

sex offense means a student who is

alleged to have committed acts that, if

proven, would constitute statutory rape

or incest. These offenses are defined in

appendix A to this part.

Final results means a decision or

determination, made by an honor court

or council, committee, commission, or

other entity authorized to resolve

disciplinary matters within the

institution. The disclosure of final

results must include only the name of

the student, the violation committed,

and any sanction imposed by the

institution against the student.

Sanction imposed means a

description of the disciplinary action

taken by the institution, the date of its

imposition, and its duration.

Violation committed means the

institutional rules or code sections that

were violated and any essential findings

supporting the institution’s conclusion

that the violation was committed.

(Authority: 20 U.S.C. 1232g(b)(6))

8. Section 99.63 is revised to read as

follows:

§ 99.63 Where are complaints filed?

A parent or eligible student may file

a written complaint with the Office

regarding an alleged violation under the

Act and this part. The Office’s address

is: Family Policy Compliance Office,

U.S. Department of Education, 400

Maryland Avenue, S.W., Washington,

DC 20202–4605.

(Authority: 20 U.S.C. 1232g(g))

9. Section 99.64 is amended by

revising paragraph (d) to read as

follows:

§ 99.64 What is the complaint procedure?

* * * * *

(d) The Office may extend the time

limit in this section for good cause

shown.

10. Appendix A is added to part 99

to read as follows:

Appendix A To Part 99—Crimes of

Violence Definitions

Arson

Any willful or malicious burning or

attempt to burn, with or without intent

to defraud, a dwelling house, public

building, motor vehicle or aircraft,

personal property of another, etc.

Assault Offenses

An unlawful attack by one person

upon another.

Note: By definition there can be no

‘‘attempted’’ assaults, only ‘‘completed’’

assaults.

(a) Aggravated Assault. An unlawful

attack by one person upon another for

the purpose of inflicting severe or

aggravated bodily injury. This type of

assault usually is accompanied by the

use of a weapon or by means likely to

produce death or great bodily harm. (It

is not necessary that injury result from

an aggravated assault when a gun, knife,

or other weapon is used which could

and probably would result in serious

injury if the crime were successfully

completed.)

(b) Simple Assault. An unlawful

physical attack by one person upon

another where neither the offender

displays a weapon, nor the victim

suffers obvious severe or aggravated

bodily injury involving apparent broken

bones, loss of teeth, possible internal

injury, severe laceration, or loss of

consciousness.

(c) Intimidation. To unlawfully place

another person in reasonable fear of

bodily harm through the use of

threatening words or other conduct, or

both, but without displaying a weapon

or subjecting the victim to actual

physical attack.

Note: This offense includes stalking.

Burglary

The unlawful entry into a building or

other structure with the intent to

commit a felony or a theft.

Criminal Homicide—Manslaughter by

Negligence

The killing of another person through

gross negligence.

Criminal Homicide—Murder and

Nonnegligent Manslaughter

The willful (nonnegligent) killing of

one human being by another.

Destruction/Damage/Vandalism of

Property

To willfully or maliciously destroy,

damage, deface, or otherwise injure real

or personal property without the

consent of the owner or the person

having custody or control of it.

Kidnapping/Abduction

The unlawful seizure, transportation,

or detention of a person, or any

combination of these actions, against his

or her will, or of a minor without the

consent of his or her custodial parent(s)

or legal guardian.

Note: Kidnapping/Abduction includes

hostage taking.

Robbery

The taking of, or attempting to take,

anything of value under confrontational

circumstances from the control,

custody, or care of a person or persons

by force or threat of force or violence or

by putting the victim in fear.

Note: Carjackings are robbery offenses

where a motor vehicle is taken through force

or threat of force.

Sex Offenses, Forcible

Any sexual act directed against

another person, forcibly or against that

person’s will, or both; or not forcibly or

against the person’s will where the

victim is incapable of giving consent.

(a) Forcible Rape (Except ‘‘Statutory

Rape’’). The carnal knowledge of a

person, forcibly or against that person’s

will, or both; or not forcibly or against

the person’s will where the victim is

incapable of giving consent because of

his or her temporary or permanent

mental or physical incapacity (or

because of his or her youth).

(b) Forcible Sodomy. Oral or anal

sexual intercourse with another person,

forcibly or against that person’s will, or

both; or not forcibly or against the

person’s will where the victim is

incapable of giving consent because of

his or her youth or because of his or her

temporary or permanent mental or

physical incapacity.

(c) Sexual Assault With An Object. To

use an object or instrument to

unlawfully penetrate, however slightly,

the genital or anal opening of the body

of another person, forcibly or against

that person’s will, or both; or not

forcibly or against the person’s will

where the victim is incapable of giving

consent because of his or her youth or

because of his or her temporary or

permanent mental or physical

incapacity.

Note: An ‘‘object’’ or ‘‘instrument’’ is

anything used by the offender other than the

offender’s genitalia. Examples are a finger,

bottle, handgun, stick, etc.

(d) Forcible Fondling. The touching of

the private body parts of another person

for the purpose of sexual gratification,

forcibly or against that person’s will, or

both; or not forcibly or against the

person’s will where the victim is

incapable of giving consent because of

his or her youth or because of his or her

temporary or permanent mental or

physical incapacity.

Note: Forcible Fondling includes ‘‘Indecent

Liberties’’ and ‘‘Child Molesting.’’

Nonforcible Sex Offenses (Except

‘‘Prostitution Offenses’’)

Unlawful, nonforcible sexual

intercourse.

Federal Register / Vol. 65, No. 130 / Thursday, July 6, 2000 / Rules and Regulations 41855

(a) Incest. Nonforcible sexual

intercourse between persons who are

related to each other within the degrees

wherein marriage is prohibited by law.

(b) Statutory Rape. Nonforcible sexual

intercourse with a person who is under

the statutory age of consent.

(Authority: 20 U.S.C. 1232g(b)(6) and 18

U.S.C. 16)

Appendix B

Analysis of Comments and Changes

Note: The following appendix will not

appear in the Code of Federal Regulations.

Applicability of FERPA to Educational

Agencies and Institutions (§ 99.1)

Comments: One commenter suggested

that examples of an ‘‘educational agency

and institution’’ should be provided in

the regulations to resolve any confusion

caused by the definition. Another

commenter asked if the definition

applies to State boards of control and

governing boards of multi-campus

college and university systems.

Discussion: FERPA applies to

educational agencies and institutions to

which funds have been made available

under any program administered by the

Secretary. The term ‘‘educational agency

or institution’’ is not defined in the

statute. Our revision clarifies that

FERPA applies only to those agencies

that direct or control the public

elementary or secondary, or

postsecondary educational institutions.

These agencies include local schools

districts or local school boards. We have

deleted the phrase ‘‘and performs

service functions for’’ because it is

confusing, and have rewritten the

definition to make it clearer.

For example, we would not consider

a ‘‘State educational agency’’ (SEA) to

be an ‘‘educational agency’’ under

FERPA unless an SEA is authorized to

direct and control public elementary,

secondary or postsecondary educational

institutions. Likewise, State boards of

control and governing boards of multicampus college and university systems

may be educational agencies under

FERPA if they are authorized to direct

and control the institutions within their

jurisdiction and if they receive

Departmental funding. This authority to

direct and control institutions varies

according to State law.

Changes: We have revised § 99.1(a)(2)

to apply to an educational agency that

is authorized to direct and control

public elementary or secondary, or

postsecondary educational institutions.

Definitions (§ 99.3)

Dates of Attendance

Comments: Several commenters

supported our more detailed

explanation of the meaning of ‘‘dates of

attendance.’’

Discussion: We believe that the

clarification of the term ‘‘dates of

attendance’’ will provide more detailed

guidance to educational agencies and

institutions because there has been

some confusion over the term.

Changes: Although no substantive

changes were made to the term ‘‘dates

of attendance,’’ we have created a

separate paragraph for the definition.

Directory Information

Comments: Four commenters

suggested that student e-mail addresses

be added to the list of examples of

records that may be disclosed as

‘‘directory information.’’ One of the

commenters noted that e-mail is the

preferred method of communication at

his institution, and that e-mail is now

the primary means of communication

with respect to many course-related

activities. Another commenter also

suggested adding class schedules and

class rosters to the list. Two

commenters, however, expressed

concern about the safety of students if

these types of information were made

public. Both commenters asked that we

discuss the opt-out provision because

they felt many parents and students are

not aware of this provision.

One commenter noted that

‘‘photograph’’ should not be included as

‘‘directory information’’ because some

photographs may be taken involuntarily,

such as student identification card

photos. The commenter contended that

institutions and the Department could

be liable in an action for invasion of

privacy for misappropriation of a

person’s likeness. The commenters

believed that this could occur where an

institution used photos in school

catalogs.

Discussion: The examples of

‘‘directory information’’ listed in the

regulations are not intended to be

exhaustive. Rather, the examples

illustrate the types of records that would

not generally be considered harmful or

an invasion of privacy if disclosed. We

agree that as methods of communication

and record management continue to

evolve, it is useful to list additional

categories of information that we believe

are directory information, such as a

student’s e-mail address and

photograph.

We do not believe that the disclosure

of student e-mail addresses will

generally be considered harmful or an

invasion of privacy. We think that a

student’s e-mail address is analogous to

a student’s mailing address, an item

already included as directory

information.

The Department also has concluded

that a student’s photograph is a type of

identifying information, like a name and

address, that would generally not be

harmful or an invasion of privacy if

disclosed. Unlike social security

numbers (SSNs), we do not believe that

disclosure of photographs will allow

access to other types of sensitive

information such as disciplinary files or

grades.

For parents or eligible students who

do not wish to have institutions disclose

photographs or any other category of

directory information, FERPA affords

them with an additional protection.

FERPA requires schools to provide

parents and eligible students with an

opportunity to opt out of disclosing

‘‘directory information.’’

In response to the comments we

received about class rosters and class

schedules, we have decided not to

include them in the regulations. We will

reevaluate our previous advice that

defined these items as ‘‘directory

information’’ and further consider the

concerns raised by commenters about

student safety.

In particular, we are concerned that

the inclusion of class rosters and class

schedules may lead schools to disclose

sensitive information. For instance, we

believe a school’s disclosure of the class

schedule of a student enrolled in a

special education or remedial class

would be harmful or an invasion of

privacy. Additionally, many class

rosters include students’ SSNs or other

identification numbers; a disclosure of

this information, even if class roster

were designated as directory

information, would be a violation of

FERPA.

Changes: On the basis of comments

that we received, we have revised the

definition of directory information by

adding student e-mail addresses.

Additionally, as proposed in the NPRM,

we have added as types of directory

information enrollment status and

photograph.

Sole Possession Records

Comments: Many commenters noted

that the proposed definition of ‘‘sole

possession records’’ should be clarified.

These commenters were particularly

concerned about the proposed phrases

in the definition such as ‘‘typically

maintained by the school official

unbeknownst to other individuals’’ and

‘‘information taken directly from a

student.’’ The commenters contended

41856 Federal Register / Vol. 65, No. 130 / Thursday, July 6, 2000 / Rules and Regulations

that a personal note that is not known

to or shared with other staff should be

considered a sole possession record,

even if the student knows about the note

or if the information comes from the

student.

One commenter noted that the

proposed definition excepted records

used to make decisions about the

student. The commenter believed that

this exception could technically apply

to the most minor decision about the

student. Another commenter stated that

the proposed changes seemed to define

‘‘sole possession records’’ out of

existence.

Discussion: We agree that our

proposed definition of ‘‘sole possession

records’’ requires modification. In the

NPRM, we sought to clarify that ‘‘sole

possession records’’ do not include

evaluations of student conduct or

performance. We have decided that

some of the requirements in our

proposed definition could be confusing.

The main purpose of this exception to

the definition of ‘‘education records’’ is

to allow school officials to keep

personal notes private. For example, a

teacher or counselor who observes a

student and takes a note to remind

himself or herself of the student’s

behavior has created a sole possession

record, so long as he or she does not

share the note with anyone else.

Changes: We have decided not to

make the revisions we proposed in the

NPRM to the definition of ‘‘sole

possession records’’ in § 99.3. We have

clarified this definition by making

minor changes.

Rights of Students (§ 99.5)

Comments: Two commenters asked

that the provision address whether a

student has access to an admissions file

after having been accepted for

admission but before enrolling.

Discussion: The amendment clarifies

that a student attending an educational

institution who applies for admission to

a separate component of the institution

and is rejected does not have any

FERPA rights with respect to records

maintained by that separate component

of the institution. That student does not

have these rights because he or she has

not attended that separate component.

Similarly, a student who is admitted to

a separate component of an institution

does not have FERPA rights with

respect to the records of that component

until he or she enrolls and becomes a

student in attendance there. Each

institution may determine when a

student is in attendance in accordance

with its own enrollment procedures.

Changes: We have revised § 99.5 to

clarify that a student does not have

FERPA rights with respect to records

collected and maintained by a separate

component of an educational

institution, including records

concerning the student’s application for

admission, if the student has not

actually attended the other component.

Conditions Under Which Prior Consent

Is Not Required To Disclose Information

(§ 99.31)

Disclosures to the U.S. Attorney General

(§ 99.31(a)(3)(ii))

Comments: A commenter expressed

concern that the statutory term ‘‘for law

enforcement purposes’’ is confusing and

asked for clarification of the term. A

commenter asked if ‘‘authorized

representatives of the Attorney General

of the United States’’ includes only

special agents in the Department of

Justice or the Federal Bureau of

Investigation. This commenter also

asked how this provision differs from

the exception in FERPA for disclosing

education records without consent in

compliance with a subpoena. One

commenter suggested that the Family

Policy Compliance Office (FPCO) work

with the Attorney General and

educational associations to develop a

form to document appropriate

demographic information and

circumstances supporting the Attorney

General’s request for education records.

Another commenter was concerned

that the amendment may allow the

Attorney General to have access to the

records of an individual student who is

suspected of a crime. The commenter

added that this provision should apply

only to crimes committed by an

institution to defraud the Federal

government or Federally funded

programs. Another commenter noted

that when disclosure is made to another

governmental agency without consent, it

should be made clear that the agency

must protect the information from

unauthorized redisclosure.

Discussion: The statutory amendment

provides for nonconsensual disclosure

of education records to authorized

representatives of the Attorney General

for law enforcement purposes under the

same conditions that apply to the

Secretary. In the case of the Attorney

General, ‘‘law enforcement purposes’’

refers to the investigation or

enforcement of Federal legal

requirements applicable to federally

supported education programs. For

example, under this exception, the

authorized representatives of the

Attorney General can access education

records without consent in order to

investigate or enforce Title II of the

Americans with Disabilities Act, Section

504 of the Rehabilitation Act of 1973,

the Equal Educational Opportunities

Act of 1974, Title IX of the Education

Amendments of 1972, Title IV of the

Civil Rights Act of 1964, or the Civil

Rights of Institutionalized Persons Act

(CRIPA). Authorized representatives of

the Attorney General include any

employee of the Department of Justice,

including the Federal Bureau of

Investigation, so long as the employee is

authorized to investigate or enforce the

Federal legal requirements applicable to

federally supported education programs.

This exception does not supersede or

modify the exception in § 99.31(a)(9) for

disclosure in compliance with a judicial

order or lawfully issued subpoena.

Rather, this new exception permits nonconsensual disclosure of education

records in connection with the Attorney

General’s investigation or enforcement

of Federal legal requirements of

federally supported education programs.

Given the limited nature of the

allowable disclosures to the Attorney

General, we believe that the

development of a form to document the

Attorney General’s request for education

records is not needed.

Finally, in response to the commenter

seeking clarification about redisclosure

provisions, we agree FERPA’s

redisclosure provisions apply to

disclosures made to authorized

representatives of the U.S. Attorney

General. Section 99.35(b) provides that

officials who collect information under

this exception must protect the

information, unless Federal law

specifically authorizes the collection of

that information. Officials must ensure

that institutions do not permit personal

identification of individuals and that

they destroy the records when no longer

needed. If another Federal law

specifically authorizes the collection of

personally identifiable information,

then the provisions in that law govern

the redisclosure and destruction of

information. In addition to the privacy

protections afforded parents and

students by FERPA, the Privacy Act may

afford some protections to some records

maintained by Federal agencies. The

Privacy Act of 1974 (5 U.S.C. 552a)

protects records contained in a system

of records maintained by Federal

agencies that are retrieved by an

individual’s name, social security

number or some other identifying

number.

Changes: We have revised

§ 99.31(a)(3)(ii) by removing the phrase

‘‘for law enforcement purposes.’’

Because disclosures to the Attorney

General are subject to § 99.35, those

disclosures will only be made to

investigate or enforce the Federal legal

Federal Register / Vol. 65, No. 130 / Thursday, July 6, 2000 / Rules and Regulations 41857

requirements applicable to federally

supported education programs.

Disclosures to Parents of Dependent

Students (§ 99.31(a)(8))

Comments: Several commenters

requested guidance on how to

determine dependency status because

the Internal Revenue Code definition of

‘‘dependent’’ is based on the student’s

status during the previous year.

One commenter noted that the NPRM

assumed that the use of the words

‘‘either parent’’ implies that only two

individuals might be responsible for a

student’s upbringing. The commenter

noted that a guardian or stepparent

might also be involved along with the

biological parents.

Another commenter asked if a

divorced parent might use this process

to obtain financial information in the

student’s record about another parent.

The same commenter also asked if the

parent who claims the student as a

dependent could restrict the kind of

information that the institution may

disclose to the other parent.

One commenter felt that this

provision would harm victims of

domestic violence by allowing the

disclosure of information in a student’s

record to a domestic violence

perpetrator. The commenter worried

that providing educational institutions

with the discretion to make these

releases would not effectively safeguard

victims of domestic violence. The

commenter suggested that institutions

be prevented from disclosing

information in a student’s record about

one parent to another parent who has

committed domestic violence.

A commenter noted that the

regulations should clarify whether

parents who obtain information about a

dependent student under this provision

are subject to the limits on redisclosure

of information under § 99.33 of the

FERPA regulations.

Two commenters wondered whether

the provision applies to students who

are legally adults and in conjunction

with disclosures under § 99.31(a)(14).

These commenters stated that this

exception should be limited to a

dependent student who is also legally a

minor. Finally, this commenter also

asked whether students may find out if

their parents have accessed their

education records.

Discussion: This amendment clarifies

that if a student is claimed as a

dependent for tax purposes and the

individual seeking education records

meets the definition of the student’s

‘‘parent’’ under FERPA, then the

institution has the discretion to disclose

records to the parent. Under FERPA, a

‘‘parent’’ is defined as ‘‘a parent of a

student and includes a natural parent, a

guardian, or an individual acting as a

parent in the absence of a parent or

guardian.’’ 34 CFR § 99.3 (‘‘Parent’’).

We have consistently advised that, in

order to determine a student’s status as

a dependent for tax purposes,

institutions should look to the most

recent year that the parent filed a return.

For example, if the parent of a

dependent student seeks access to the

student’s education records in

November 1999, the institution should

review the taxpayer’s 1998 tax return to

determine whether the student is a

dependent.

Because eligible students—students

attending a postsecondary institution or

over the age of 18—retain all rights

under FERPA, an educational agency or

institution must obtain a reasonable

assurance that the student meets the

requirements as a dependent for tax

purposes. If the educational agency or

institution is unable to obtain that

assurance, then information from the

student’s education records may not be

disclosed. Once the educational agency

or institution obtains that assurance, it

has the discretion to, although it need

not, disclose the student’s education

records to a parent of the student.

We received several comments

concerning the use of this provision by

one parent to access information about

another parent. In response to these

comments, we note that FERPA

provides parents with broad rights of

access to their children’s education

records when a child is under 18 and is

not attending an institution of

postsecondary education. This

provision will have a more limited

application because it is typically

applied by institutions of postsecondary

education.

We agree that a divorced parent could

attempt to use this exception to obtain

financial information in the student’s

education records about the other parent

if the other parent claims the student as

a dependent. However, an institution

has no obligation to disclose any

financial information about one parent

to another. Thus, if a parent claims the

student as a dependent, and does not

want his or her financial information

disclosed to his or her spouse or former

spouse, the parent may make that

request to the institution. The

institution has the discretion not to

disclose the information to the spouse

or former spouse.

Because this provision provides an

institution with discretion regarding

what information, if any, it discloses to

a parent, we do not believe that

institutions will release information to

known perpetrators of domestic

violence. We strongly encourage victims

of domestic violence to inform

institutions of postsecondary education

not to disclose any information from a

student’s education record to a

perpetrator of domestic violence. We

believe that institutions will understand

the importance of complying with these

requests. If a student or parent does not

inform an institution of postsecondary

education that a parent is a perpetrator

of domestic violence, we do not believe

it would be reasonable to expect

institutions to be aware of this

information. We cannot hold schools

responsible for disclosures made

unknowingly to a perpetrator of

domestic violence.

We agree that the regulations should

clarify whether parents who obtain

information about a dependent student

are subject to the limits on redisclosure

of information under § 99.33.

This provision applies to education

records of students who are legally

adults. The plain language of the statute

applies to ‘‘dependent students’’

including students who are adults. This

provision is not related to disclosures

made under the new drug and alcohol

provision, contained in § 99.31(a)(14) of

these regulations. Finally, dependent

students can access their own education

records. Under FERPA’s recordkeeping

requirements, the student’s records

contain, with some exceptions,

documentation of every nonconsensual

disclosure made by the institution of

personally identifiable information.

Changes: We have revised

§ 99.31(a)(8) to clarify that it applies to

a ‘‘parent’’ as defined under FERPA. We

have also clarified in § 99.33(c) that

parents who obtain information about a

dependent student are not subject to

these redisclosure limitations.

Disclosures in Response to Legal

Actions (§ 99.31(a)(9)(iii))

Comments: Several commenters

support a new provision that allows an

educational agency or institution to

disclose education records to a court on

a nonconsensual basis, without a court

order or subpoena, if a parent or eligible

student has initiated legal action against

the agency or institution and the records

are necessary for the agency or

institution to defend itself.

Commenters also noted that the

Department has issued letters of finding

stating that when a parent or student

has filed a complaint with a State or

Federal government agency, an

accrediting agency, or a third party

other than a court, an institution may

disclose information to that party

without consent in order to defend

41858 Federal Register / Vol. 65, No. 130 / Thursday, July 6, 2000 / Rules and Regulations

itself. In particular, one commenter

stated that the FPCO reversed its

previous position and advised

institutions that they could disclose

information from a student’s education

record to a third party if the student

alleged wrongdoing by the institution to

that third party. Several commenters

suggested that the regulations should

address these additional instances of

permissible nonconsensual disclosure.

Finally, another commenter asked if

third party recipients of education

records, involved in litigation with a

parent or student, may disclose the

student’s education records without

consent during the course of the

litigation.

Discussion: FERPA allows agencies

and institutions to disclose education

records without consent to comply with

a judicial order or lawfully issued

subpoena. The statute, however,

requires that institutions first must

make a reasonable effort to notify the

parent or eligible student in advance of

the disclosure. The purpose of this prior

notification is to give the parent or

eligible student an opportunity to object

to the issuance of the judicial order or

to move to quash the subpoena.

In 1996, the Department revised

§ 99.31(a)(9) to allow an educational

agency or institution that initiated legal

action against a parent or student to

disclose relevant education records

without consent and without a court

order or subpoena, provided that the

agency or institution had complied with

the notification requirements contained

in § 99.31(a)(9)(ii).

We also noted in the 1996 final

regulations that we interpreted FERPA

to allow an educational agency or

institution to infer the parent’s or

student’s implied waiver of the right to

consent to the disclosure of information

from education records if the parent or

student had sued the institution. (61 FR

59292, 59294 (November 21, 1996). This

interpretation allowed an educational

agency or institution to disclose a

student’s education records to a court

without consent, and without a court

order or subpoena, in cases where a

parent or the student had sued the

agency or institution. While we

discussed this interpretation in the

preamble, we did not include it in the

1996 regulations.

For two reasons, we have concluded

that an educational agency or institution

may disclose education records to a

court without consent and without a

court order or subpoena if a parent or

student has sued the agency or

institution. First, an agency or

institution should not be required to

subpoena its own records or seek a

judicial order in order to defend itself in

a lawsuit initiated by a parent or

student. Second, we believe that when

a parent or eligible student sues an

agency or institution, the parent or

eligible student understands that the

agency or institution must be able to

defend itself. In order to defend itself,

the agency or institution must be able to

use relevant education records of the

student. Thus, we believe that the

parent or eligible student waives their

FERPA protections under a theory of

implied consent.

We have also concluded that the

notification requirements contained in

§ 99.31(a)(9)(ii) are not necessary in any

litigation between an educational

agency or institution and a parent or

student. For this reason, we have

deleted the notification requirement in

former § 99.31(a)(9)(iii) and have not

included it in § 99.31(a)(9)(iii)(B) of

these regulations.

The notification requirement is

intended to provide a parent or student

with an opportunity to object to an

order or to move to quash a subpoena

before an educational agency or

institution discloses education records

in compliance with the court order or

subpoena. However, there is no such

reason to require notification of a parent

or student if an educational agency or

institution sues a parent or student

because the parent or student must be

served with the lawsuit. Similarly, if a

parent or student sues an educational

agency or institution, the parent or

student will not need to be notified of

the lawsuit.

When an educational agency or

institution files a lawsuit against a

student or parent, the complaint is

likely to disclose personally identifiable

information from the student’s

education records. It does not make

sense to require that an educational

agency or institution inform a parent or

student that it plans to disclose

personally identifiable information from

a student’s education records in a

complaint because a parent or student

cannot do anything to prevent the

complaint from being filed. Further,

after a complaint has been filed, we do

not think that notification of a parent or

student is necessary. A parent or

student who has been sued by an

educational agency or institution should

realize that personally identifiable

information from the student’s

education records might be disclosed in

the lawsuit. If the parent or student

wants to ensure the student’s privacy,

the parent or student may petition the

court to take measures to protect the

student’s privacy, such as sealing the

court’s records.

When a student or parent files a

lawsuit against an educational agency or

institution, the student or parent should

realize that the educational agency or

institution might need to disclose

personally identifiable information from

the student’s education records in order

to defend itself. We also feel that it is

overly burdensome to require that an

educational agency or institution notify

the parent or student every time that it

wants to disclose personally identifiable

information from the student’s

education records in the lawsuit.

Notification is also unnecessary because

a parent or student who sues an

educational agency or institution may

petition the court to take measures to

protect the student’s privacy, such as

sealing the court’s records.

Several commenters asked the

Department to extend the theory of

implied waiver of the right to consent to

a non-litigation context. Specifically,

they alluded to the Department’s ruling

that when a student has taken an

adversarial position against the

institution, made written allegations of

wrongdoing against the institution, and

shared this information with third

parties, the institution must be able to

defend itself. While we offered this

interpretation in a previous letter of

finding, we did not propose to regulate

on this issue in the NPRM. As a result,

we cannot include these guidelines in

our final regulations.

Finally, in response to the commenter

who asked if third party recipients of

education records may release student

education records if the student or

parent sues the third party, we did not

address this issue in the NPRM. Thus

we cannot regulate on this issue at this

time.

Changes: We have added

§ 99.31(a)(9)(iii)(B) which allows an

educational agency or institution to

disclose education records to a court

without consent, and without a court

order or subpoena, if a parent or eligible

student has initiated legal action against

an educational agency or institution. We

have also deleted the notification

requirement in § 99.31(a)(9)(iii)(A) so

that an educational agency or institution

that has initiated legal action against a

parent or student does not have to notify

the parent or student before disclosing

the student’s relevant education records.

Disclosure of the Final Results of a

Disciplinary Proceeding (§ 99.31(a)(13),

§ 99.31(a)(14), and § 99.39)

Comments: We received numerous

comments about these provisions. The

comments fell into four general

categories: scope of the provision; the

meaning of its terms; its effective date;

Federal Register / Vol. 65, No. 130 / Thursday, July 6, 2000 / Rules and Regulations 41859

and the applicability of FERPA’s

redisclosure provisions. Specifically,

with respect to the second category,

commenters sought clarification of the

terms ‘‘alleged perpetrator,’’ ‘‘crime of

violence,’’ ‘‘nonforcible sex offense,’’

and ‘‘final results.’’

Scope of the Provision

Commenters asked whether

postsecondary institutions are now

required to disclose the final results of

a disciplinary proceeding conducted

against an alleged perpetrator of a crime

of violence or a non-forcible sex offense

or whether the disclosure is

discretionary. Commenters added that

many public institutions are subject to

State open records laws that require the

release of records unless that release is

contrary to Federal law. Thus, one

commenter contended that an

institution’s discretion to release the

final results of specified disciplinary

proceedings is an illusion because the

amendment eliminated the protection

that FERPA had provided against

disclosure.

Some commenters asked whether

institutions may disclose the final

results of a disciplinary proceeding to

anyone or to just the victim. One

commenter also noted a change to

§ 99.31(a)(13). He noted that, as

proposed, § 99.31(a)(13) would have

limited the disclosure of final results to

proceedings in which the institution

determines that the student committed

the violation. The commenter noted,

however, that the Department requires

notification of the final results of a

disciplinary proceeding, regardless of

the outcome, to the victim in a sexual

assault case.

Definitions: ‘‘Alleged Perpetrator’’

We received many comments about

the definitions used in this provision.

Many comments concerned the term

‘‘alleged perpetrator of a crime of

violence.’’ These commenters noted that

this term is confusing. Several

commenters asked who is responsible

for making the determination that a

student is an ‘‘alleged perpetrator’’ of a

crime of violence. Specifically, one

commenter wondered whether the

complainant, the requester, or the

institution determines that a student is

an ‘‘alleged perpetrator.’’

Commenters also asked when a

student becomes ‘‘an alleged

perpetrator.’’ One commenter wondered

if this determination is made when

formal criminal charges are brought or

sometime earlier in the criminal

process. This commenter also wondered

what would happen if the charges were

dropped or if the student were found

not guilty in a court of law. Several

other commenters felt that a student

should only become an ‘‘alleged

perpetrator’’ of a crime of violence after

formal criminal charges have been

brought. In contrast, some other

commenters suggested that Congress

intended to cover disciplinary charges

whether or not police or other law

enforcement officials are involved. They

added that the institution must

determine whether a student is an

‘‘alleged perpetrator’’ of a crime of

violence through the institution’s

disciplinary process.

Finally, some commenters expressed

concern about libel or slander claims if

institutions label a student an ‘‘alleged

perpetrator of a crime of violence,’’

because institutions do not use the

terms ‘‘alleged perpetrator’’ or ‘‘crime of

violence’’ in their disciplinary codes.

‘‘Crime of Violence’’

Many commenters suggested that the

regulations should identify more

specifically what offenses constitute

‘‘crimes of violence.’’ For example,

educational institutions asked whether

petty property crimes, technical

batteries, and other offenses are crimes

of violence. College administrators

indicated that they must be free to

exercise discretion in categorizing

incidents as ‘‘crimes of violence’’

without fear of losing institutional

funding. Another commenter liked our

proposed use of the Federal Bureau of

Investigation’s (FBI) Uniform Crime

Reporting Program definitions.

One commenter asked that the

Secretary remove confusing language

and permit the disclosure of information

for any student who commits a violation

of institutional policies involving

behavior that includes an element of

violence or physical force. This

commenter suggested that the term

‘‘felony’’ (which is used in the statutory

definition of ‘‘crime of violence’’)

should be replaced with ‘‘other serious

offense.’’ This commenter also asked

that we provide examples of what

constitutes a ‘‘serious’’ offense. Finally,

this commenter asked that the

Department recognize the difference

between criminal prosecutions and

student disciplinary proceedings by

changing the term ‘‘student charged’’ to

‘‘student found responsible.’’

‘‘Non-Forcible Sex Offense’’

Many commenters wondered whether

the new disclosure provisions apply to

disciplinary proceedings against alleged

perpetrators of a ‘‘non-forcible sex

offense.’’ The commenters were

concerned that if the regulations do not

apply to non-forcible sex offenses,

postsecondary institutions could

continue to keep proceedings secret,

even matters involving such offenses as

date rape. In short, these commenters

were concerned that the term ‘‘crime of

violence’’ may not encompass offenses

such as date rape and asked that we

include and define the term ‘‘nonforcible sex offense.’’ One commenter

contended that, without a clear

definition of ‘‘nonforcible sex offense,’’

the institution would be able to

manipulate its disciplinary code in

order to shield offenses from disclosure.

A commenter stated that the

regulations did not define or include the

term ‘‘non-forcible sex offense’’ because

such an offense is considered a ‘‘crime

of violence.’’ Another commenter noted

that the FBI’s Uniform Crime Reporting

(UCR) Program defines non-forcible sex

offense as statutory rape and incest.

However, one commenter contended

that Congress did not intend the term

‘‘non-forcible sex offense’’ to include

only statutory rape and incest.

‘‘Final Results’’

Many commenters stated that the

regulations should define when a result

is final. They noted that at many

institutions a student has a right to

appeal or seek review of a decision

before a result is truly final. The

commenters suggested that ‘‘final

results’’ should be defined as that point

when all internal institutional appeals

have been exhausted. However, another

commenter felt that ‘‘final results’’

should be defined earlier in the

disciplinary process so that the public

can be informed if there is institutional

favoritism in the appeals process.

Several commenters also noted that

the proposed definition of ‘‘final

results’’ was unclear because it did not

offer sufficient guidance as to the type

of information that may be released.

Because the proposed definition of

‘‘final results’’ includes disclosure of the

violation committed, these commenters

specifically requested that we define the

term ‘‘violation committed.’’

One of these commenters contended

that the term ‘‘violation committed’’

calls for a plain language description of

the behavior that formed the basis of the

disciplinary violation. Another

commenter suggested that ‘‘violation

committed’’ should be defined to

include the nature of the offense,

including both the institution’s

categorization or description of the

offense and any criminal offenses to

which that categorization corresponds,

and the date, time and location of the

offense. If the term ‘‘violation

committed’’ is not defined, commenters

believed that institutions could release

41860 Federal Register / Vol. 65, No. 130 / Thursday, July 6, 2000 / Rules and Regulations

vague summaries of offenses, such as

describing an assault as ‘‘disorderly

behavior.’’

Commenters also noted that the

definition of the term ‘‘final results’’

calls for the ‘‘sanction imposed.’’

Consequently, these commenters

requested that we define the term

‘‘sanction imposed’’ to include a

description of the disciplinary action,

the date of imposition and duration, and

definitions of any terms used, such as

‘disciplinary probation.’

Several commenters had suggestions

about the methods that institutions

should use to disclose the final results

of disciplinary proceedings. The

commenters suggested that we should

permit disclosure of the final

determination, or the updated crime log

required under 20 U.S.C. 1092(f), rather

than requiring institutions to create a

new, one-line record that constitutes

final results. The commenters stated

that any crime of violence or nonforcible sex offense should have a

related entry on the campus crime log,

including the nature, date, time, and

general location of each crime and the

disposition of the complaint, if known.

(20 U.S.C. 1092(f)(4)(A)(i) and (ii)). One

commenter noted that new information

pertaining to a crime or offense, such as

the final results of a disciplinary

proceeding, must be included in the

campus crime log within two business

days. (20 U.S.C. 1092(f)(4)(B)(ii)). He

stated that the regulations should also

clarify that everything other than the

final results of the disciplinary process,

such as transcripts of proceedings and

other documents, remains protected by

FERPA as part of a student’s education

record.

In contrast, one commenter argued

that the statute clearly defines final

results. The commenter stated that the

statute lists the types of information that

may be disclosed as part of the final

results of the disciplinary proceeding—

the student’s name, the violation

committed, and any sanction imposed.

The commenter noted that any

amendment to FERPA that takes away

the privacy rights of students should be

construed narrowly to protect the intent

of the law. Under this reasoning, he

stated, the proposed regulatory language

should not be modified.

Redisclosure

Some commenters asked that the

regulations clarify that redisclosure

limitations in § 99.33 do not apply to

disclosures under § 99.39. Because the

statute provides that final results may be

disclosed to anyone, these commenters

reasoned that limitations on

redisclosure are inappropriate.

Effective Date

Several commenters asked us to

address the issue of the effective date of

the regulations. In particular, they asked

us if the statute applies to

determinations of the final result

reached after October 7, 1998, or to

requests dated after October 7, 1998.

These commenters explained that

students subject to disciplinary

proceedings conducted prior to October

7, 1998 had a legitimate belief that

Federal confidentiality laws protected

their education records generated

during these proceedings. The

commenters requested that we continue

to ensure that these records remain

confidential. In contrast, one commenter

felt that the statute should apply to any

requests dated after October 7, 1998,

regardless of when the records were

created. Finally, one commenter asked

the Secretary to clarify how institutions

should handle requests that were made

after October 7, 1998, but before the

effective date of the final rule.

Discussion: Scope of the Provision

This new exception to the prior

written consent rule does not require

postsecondary educational institutions

to disclose the final results of

disciplinary proceedings to anyone. The

disclosure is permissive. Thus, the

effect of the amendment is that

institutions are now free to follow their

own policies regarding disclosure of this

information. Institutions should consult

with their own counsel or State officials

regarding whether their State open

records law requires disclosure of the

final results of disciplinary proceedings

in which a student is found to be an

alleged perpetrator of a crime of

violence. In response to the commenter

who was concerned about State open

records laws that require disclosure,

FERPA does not prevent that disclosure.

Inadvertent Deletion

In section 99.31(a)(13) of the NPRM,

we inadvertently deleted a provision

that permits postsecondary institutions

to disclose to the victim the results of

a disciplinary proceeding against the

alleged perpetrator of a crime of

violence, regardless of the outcome. We

have reinstated that provision,

designated as § 99.31(a)(13). Sections

99.31(a)(13) and 99.31(a)(14) differ

significantly. Victims may be informed

of the final results of a disciplinary

proceeding against an alleged

perpetrator under § 99.31(a)(13),

regardless of the outcome of that

proceeding. In contrast, under

§ 99.31(a)(14), the institution may

disclose to the public the final results of

a disciplinary proceeding only if it has

determined that:

(1) The student is an alleged

perpetrator of a crime of violence or

non-forcible sex offense; and

(2) The student has committed a

violation of the institution’s rules or

policies with respect to the allegation.

Definitions: ‘‘Alleged Perpetrator’’ and

‘‘Crime of Violence’’

We have reviewed the numerous

comments we received on these terms.

In particular, we have considered the

comments from school officials that

contend that student codes of conduct

are not generally written using criminal

terms. We agree that the statutory

definition of ‘‘crime of violence,’’ as

defined in 16 U.S.C. 18, is difficult to

apply. Therefore, we have re-written the

provision to define ‘‘crime of violence.’’

The definition consists of an allinclusive list of ‘‘crimes of violence.’’

This list consists of:

Arson

Assault offenses

Burglary

Criminal homicide—manslaughter by

negligence

Criminal homicide—murder and

nonnegligent manslaughter

Destruction/damage/vandalism of

property

Kidnapping/abduction

Robbery

Forcible sex offenses.

We define these crimes according to

the Federal Bureau of Investigation’s

Uniform Crime Reporting (UCR)

Handbook (1984) and the UCR

Reporting Handbook: National IncidentBased Reporting System (NIBRS),

Volume I (Data Collection Guidelines)

(1996). We have listed these definitions

in appendix A following these

regulations. We have used the same

definitions of murder and nonnegligent

manslaughter, manslaughter by

negligence, forcible sex offenses, nonforcible sex offenses, robbery,

aggravated assault, burglary and arson,

that are used in the Student Assistance

General Provisions, 34 CFR Part 668,

because institutions of postsecondary

education already are familiar with

these definitions. We have taken from

the UCR Reporting Handbook: NIBRS

the definitions for those crimes of

violence that are not defined in the

Student Assistance General Provisions

regulations. Copies of these UCR

publications are available from:

Programs Support Section, Criminal

Justice Information Services Division,

Federal Bureau of Investigation, 1000

Custer Hollow Road, Clarksburg, West

Virginia 26306–0154.

Federal Register / Vol. 65, No. 130 / Thursday, July 6, 2000 / Rules and Regulations 41861

We believe that this list will be easier

to apply for institutions and that a

standard set of definitions will allow for

more uniform application. In response

to the commenter who wondered if a

petty property crime or a technical

battery would constitute a crime of

violence, those incidents are crimes of

violence if they fall within the

definitions of one of the crimes listed

above.

We also agree with commenters that

the term ‘‘alleged perpetrator’’ is not

clear, and should be clearly defined. We

define an ‘‘alleged perpetrator’’ as a

student who is alleged to have

committed acts that would, if proven,

constitute any of the offenses that we

have stated are crimes of violence or

non-forcible sex offenses. As this

definition suggests, we believe that

institutions will have to use their

judgment on a case-by-case basis about

whether certain alleged acts constitute a

crime of violence or non-forcible sex

offense.

In order to determine if someone is an

alleged perpetrator, institutions should

look at allegations made as part of the

disciplinary proceeding. These

allegations can be made by a victim, a

third-party witness, or by the

institution. These allegations can be

made at any time during the

disciplinary proceeding, beginning from

the time that an initial complaint or a

charge is filed, until the final result is

reached. This disciplinary process is not

related to criminal proceedings. The

institution does not need to refer the

matter to the police or await any

criminal proceedings in order to

consider a student an alleged

perpetrator of a crime of violence or

non-forcible sex offense.

In response to the commenters who

expressed concern about possible

defamation claims if an institution

labels a student ‘‘an alleged perpetrator

of a crime of violence,’’ we note that the

provision merely calls for the school to

determine that a student has been

alleged to have committed a crime of

violence. In short, such a determination

does not mean that the student

committed a crime of violence, but that

an allegation was made that the student

engaged in the type of behavior that

rises to the level described in the

definitions of a crime of violence. We do

not believe that a school can be found

liable on a defamation claim for this

type of determination.

‘‘Non-Forcible Sex Offense’’

We agree with the commenters who

argued that Congress intended to cover

the crimes of date rape and

acquaintance rape. However, these two

crimes fall within the statutory

definition of ‘‘crime of violence,’’

specifically within the meaning of

‘‘forcible sex offense’’ as defined in the

UCR Reporting Handbook: NIBRS. We

have clarified that the definition of ‘‘an

alleged perpetrator of a crime of

violence’’ includes forcible sex offenses

such as date rape and acquaintance

rape. However, in an effort to avoid any

confusion caused by not including a

definition of ‘‘non-forcible sex offense,’’

we also define the term ‘‘alleged

perpetrator of a non-forcible sex

offense’’ in the regulations. ‘‘Alleged

perpetrator of a non-forcible sex

offense’’ is defined as ‘‘a student who is

alleged to have committed acts that, if

proven, would constitute statutory rape

or incest.’’ This definition is based on

the FBI’s definition of ‘‘non-forcible sex

offense.’’ The definition is listed in

appendix A, which follows these

regulations.

‘‘Final Results’’

The Department is concerned about

violence on campus. We recognize the

need for students to be aware of how an

institution responds to these incidents.

Therefore, we have defined ‘‘final

results’’ to allow institutions to disclose

the results of disciplinary proceedings

before all internal reviews and appeals

have been exhausted. We define ‘‘final

results’’ to mean a decision or

determination, made by an honor court

or council, committee, commission, or

other entity authorized to resolve

disciplinary matters within the

institution. We believe that this

definition will benefit students who

have been victims of violent crimes and

non-forcible sex offenses. Institutions

will not be able to claim that FERPA

allows them to release results of

disciplinary proceedings only after all

internal reviews and appeals have been

exhausted.

We agree that the regulations should

provide additional guidance regarding

how much and what type of information

may be provided in the final results. We

have defined the term ‘‘violation

committed’’ and ‘‘sanction imposed’’ in

order to help institutions understand

what information may be released. We

define ‘‘violation committed’’ as the

institutional rules or code sections that

were violated and any essential findings

supporting the institution’s conclusion

that the violation was committed. We

agree with the commenter that

‘‘sanction imposed’’ should be defined

as a description of the disciplinary

action taken by the institution, the date

of its imposition, and its duration.

We believe that institutions generally

will be able to disclose the final results

of the disciplinary proceeding without

creating new records. An institution

may disclose its letter of final

determination provided that the

institution redacts all personally

identifiable information in the letter

except those portions that contain the

student’s name, the violation

committed, and the sanction imposed.

In other words, the institution must not

disclose, without consent, any other

portions of the letter of final

determination that contain personally

identifiable information that is directly

related to the accused student or to any

other student. If, however, the letter of

final determination does not contain the

violation committed or the sanction

imposed, then the institution has

discretion to create a new document in

order to disclose this information.

Several commenters suggested that

the final results of disciplinary

proceedings be released in the form of

an updated crime log. Because the

release of this information is

discretionary under FERPA, we agree

with these commenters that the release

of an existing crime log, as required by

the campus security regulations (34 CFR

§ 668.46(f)), may be a satisfactory way to

disseminate this information. It is worth

noting that a crime log contains any

crime reported to campus police or a

campus security department, rather than

only crimes of violence or non-forcible

sex offenses.

The release of a campus crime log,

however, will not disclose some

information that is permitted to be

disclosed under FERPA. Specifically, a

campus crime log does not contain the

names of alleged perpetrators of crimes

of violence or non-forcible sex offenses.

Rather, a campus crime log includes the

nature, date, time and general location

of each crime and the disposition of the

complaint, if known. (20 U.S.C.

1092(f)(4)(A)(i) and (ii).) Final results

that can be disclosed under FERPA,

however, concern the name of the

student, the disciplinary violation that

the student committed, and the

disciplinary sanction imposed on the

student.

Redisclosure

The redisclosure limitations in § 99.33

do not apply to disclosures made under

§ 99.31(a)(14) because information about

the final results of a disciplinary

proceeding concerning a crime of

violence or a non-forcible sex offense

may be disclosed to anyone, including

the media. Thus, we have revised

§ 99.33.

41862 Federal Register / Vol. 65, No. 130 / Thursday, July 6, 2000 / Rules and Regulations

Effective Date

This amendment to FERPA was

effective October 7, 1998. We interpret

the effective date to mean the date that

an institution reaches its final result in

a disciplinary proceeding. This result

preserves the expectation of students

regarding confidentiality of disciplinary

proceedings occurring before the

effective date of the statute. Thus,

institutions may disclose the final

results of a disciplinary proceeding

under § 99.31(a)(14) so long as the final

results are reached on or after October

7, 1998.

With regard to requests for education

records received between October 7,

1998, and the effective date of these

final regulations, we will not find that

institutions violated FERPA for

disclosing the final results of

disciplinary proceedings, regardless of

when these results were reached. We

previously had interpreted the effective

date as being the date an institution

received a request for records, rather

than the date that an institution reached

its final results. We will not find that

institutions that followed our advice

regarding this issue violated FERPA.

Changes: We have reinserted

§ 99.31(a)(13) in the regulations. This

provision permits institutions of

postsecondary education to disclose to

the victim the final results of a

disciplinary proceeding conducted

against the alleged perpetrator of a

crime of violence or a non-forcible sex

offense regardless of the outcome of the

proceedings. We have explained that an

alleged perpetrator of a crime of

violence or non-forcible sex offense

should be determined by looking at the

allegation that a student has committed

a crime of violence or non-forcible sex

offense. We have revised the definition

of crime of violence to reflect an allinclusive list of crimes. The list

includes forcible sex offenses, such as

date rape and acquaintance rape, and

non-forcible sex offenses.

We have revised the definition of

‘‘final results.’’ The definition means a

decision or determination, made by an

honor court or council, committee,

commission, or other entity authorized

to resolve disciplinary matters within

the institution. We have also defined

‘‘violation committed’’ and ‘‘sanction

imposed.’’

We have clarified that the

redisclosure provisions do not apply to

disclosures made in connection with a

disciplinary proceeding under

§ 99.31(a)(14).

We have also explained that only final

results determined on or after October 7,

1998, may be disclosed without consent

under § 99.31(a)(14).

Disclosures to Parents About Drug and

Alcohol Violations (§ 99.31(a)(15))

Comments: Many commenters were

confused that § 99.31(a)(15) did not

address a student’s status as a

dependent. They asked that we address

the relationship between this exception

and § 99.31(a)(8).

One commenter felt that using 21 as

a dividing line will result in students

being treated differently depending on

their age. For example, if the institution

disciplines the same student before and

after the student turns 21, the institution

may only disclose the earlier

disciplinary determination. The

commenter also believed that parents

will not understand why they may be

notified in the first instance and not in

the second.

Another commenter pointed out that

is it not clear how an institution should

determine a student’s age under the

exception. The commenter wondered

whether the institution should use the

student’s age when the incident occurs,

when the institution determines that a

disciplinary violation occurs, or when

the institution makes a disclosure. He

argued that the institutions should be

able to disclose records to parents about

violations if the student is under 21 at

the time of the drug or alcohol incident.

Another commenter stated that the

statute permits disclosure without

consent to a ‘‘parent’’ or ‘‘legal

guardian’’ but noted that the FERPA

regulations define ‘‘parent’’ to include

legal guardian, as well as an individual

acting as a parent in the absence of a

parent or a legal guardian. The

commenter asked that the Department

clarify the regulations by using only the

term ‘‘parent,’’ because use of ‘‘legal

guardian’’ is confusing and repetitive.

Alternatively, he contended that the

regulations should use a special,

narrower term such as ‘‘natural or

adoptive parent’’ because FERPA is a

privacy statute and should be construed

narrowly. The commenter stated that

the Department should also change the

definition of ‘‘parent’’ in § 99.3

specifically to include individuals who

adopt children.

Another commenter requested that we

clarify that the statute does not apply to

determinations of disciplinary

violations that were made before

October 7, 1998. Similarly, a commenter

questioned what rule would apply to

disclosures made under this exception

after the passage of the statute and prior

to the promulgation of these regulations.

A commenter stated that this

provision, like the statute, is unclear

because the term ‘‘disciplinary

violation’’ is not defined. The

commenter stated that without a

regulatory definition of ‘‘disciplinary

violation,’’ FERPA will not be

implemented uniformly throughout the

50 states, as required under 20 U.S.C.

1232g(c), and will vary based on the

whims of campus administrators.

A commenter asked if there is any

significance in using the term

‘‘determination’’ in § 99.31(a)(15), while

using the term ‘‘disciplinary

proceeding’’ in § 99.31(a)(14). He also

asked if an institution must make a

determination in a disciplinary

proceeding, or if an institution can make

a determination that there has been a

violation of its disciplinary code in

some other way. For example, the

commenter wondered if an institution

could determine that a disciplinary

violation has been committed and send

information to a parent under this

provision if a video camera simply

recorded an intoxicated student walking

around campus. The commenter

expressed concern that the threshold

could be set so low as to eliminate the

phrase ‘‘disciplinary violation’’ from the

statute.

Finally, a commenter asked us to

explain that students can find out when

their parents have been notified of a

drug or alcohol violation.

Discussion: This provision applies

only to students under the age of 21 at

the time of the disclosure to the parent.

We clarify that an institution may

disclose information under this

exception without regard to whether the

student is a dependent for tax purposes.

We have concluded that the student

must be under 21 years of age at the

time that the institution discloses to the

student’s parent that the student has

committed a disciplinary violation with

respect to alcohol or drug use or

possession. We reach this conclusion

because the statute links the

institution’s option to disclose with the

age of the student and the institution’s

determination that the student

committed a disciplinary violation. The

Secretary has no statutory authority to

allow institutions to disclose alcohol

and drug violations of students after

they have turned 21.

We agree with the commenter that the

use of the term ‘‘legal guardian’’ is

repetitive and unnecessary. The

statutory term ‘‘parent and guardians’’ is

covered by our regulatory definition of

the term ‘‘parent.’’ Likewise, it would be

redundant to include the term ‘‘adoptive

parents.’’

In response to the comment about

disciplinary violations occurring before

October 7, 1998, we conclude that

Federal Register / Vol. 65, No. 130 / Thursday, July 6, 2000 / Rules and Regulations 41863

institutions are not permitted to disclose

any determinations of disciplinary

violations reached before October 7,

1998. This conclusion protects the

legitimate expectation of confidentiality

that students had regarding drug or

alcohol disciplinary violations before

October 7, 1998.

With regard to institutional

disclosures to parents under this

exception occurring after October 7,

1998, but prior to the promulgation of

these final regulations, we will not find

that institutions violated FERPA so long

as the disclosure was based on a

reasonable interpretation of the

statutory amendment.

We recognize that there is confusion

over the terms ‘‘determination’’ and

‘‘disciplinary violation.’’ Commenters

sought guidance on the meanings of

these terms and the responsibilities of

postsecondary institutions under this

exception.

We note that an institution may make

a determination under this exception

without conducting any sort of

disciplinary proceeding. We reached

this conclusion for two reasons. First,

we compared the language used by

Congress in this exception and the

‘‘crime of violence’’ exception. The

‘‘crime of violence’’ exception permits

the disclosure of final results of a

disciplinary proceeding conducted by

the institution. This statutory provision

clearly indicates that, before making any

disclosures under this exception, an

institution must first conduct some type

of hearing or proceeding.

However, the drug and alcohol

provision is worded very differently.

That statutory provision does not use

the term ‘‘disciplinary proceeding,’’ and

we believe Congress’ choice of words

was deliberate. Therefore, we do not

have the authority to require schools to

conduct a disciplinary proceeding in

order to determine that a student has

committed a disciplinary violation with

respect to drug or alcohol use.

Institutions may establish and follow

their own procedures for making these

types of determinations.

The limited nature of this disclosure

supports our interpretation that this

exception does not require institutions

to conduct any sort of formal

disciplinary proceeding. This exception

permits disclosures only to parents. In

contrast, disclosures made in

accordance with § 99.31(a)(14) can be

made to the public. Thus, we believe

that Congress intended to make it easier

for institutions to inform parents of drug

and alcohol violations by allowing the

institution to release the information

without conducting a formal

disciplinary hearing.

Although we recognize that

commenters sought a definition of the

term ‘‘disciplinary violation,’’ we

decline to define this term. We

recognize that institutions have different

codes of conduct. If we imposed a

specific standard for a ‘‘disciplinary

violation,’’ we would be placing a large

burden on institutions to conform their

codes of conduct to our regulatory

definition. We will not impose such a

burden.

In response to the concern that an

institution could set the threshold so

low as to read the phrase ‘‘disciplinary

violation’’ out of the statute, we do not

believe that institutions will act

irresponsibly when making disclosures

under this provision. We also

emphasize that this disclosure, as with

other permissible disclosures under

§ 99.31(a), is discretionary. Furthermore,

the statutory amendment also provides

that this new exception does not

supersede any provision of State law

that prohibits an institution of

postsecondary education from making

the permitted disclosure.

Finally, FERPA does not require

institutions to notify students each time

the institution discloses information

from their education record.

Institutions, however, are required, with

some exceptions, to maintain a record of

each disclosure of personally

identifiable information from an

education record along with that

education record. Students at

postsecondary institutions have the

right under FERPA to access and view

their own education records which

should include a record of any

disclosures made. Postsecondary

students who wish to know if their

parents have been notified of drug or

alcohol violations should seek access to

their own education records.

Changes: We revised § 99.31(a)15 by

removing the term ‘‘legal guardian.’’ We

have also specified that a student must

be less than 21 years of age when the

institution discloses to the parent that

the institution has determined that a

disciplinary violation has occurred.

[FR Doc. 00–17058 Filed 7–5–00; 8:45 am]

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