NAICU Washington Update

ED Proposes Regs to Reduce FERPA Privacy Protections

April 11, 2011

The Department of Education has published proposed regulations dealing with the Family Educational Rights and Privacy Act (FERPA).  Driving the proposal released April 8 is the Department's intent to facilitate statewide longitudinal data systems capable of tracking individuals from pre-kindergarten through employment (see this document for the Department's rationale).

NAICU has long supported student privacy rights, and strongly opposed earlier efforts by the Department to establish a national student unit record system.  The association is concerned that these new proposals represent a substantial and unwarranted erosion of student privacy.

The federal government has already invested over $500 million in state-level data systems, and the President's FY 2012 budget requests another $100 million for this purpose.  In addition, the American Relief and Recovery Act (ARRA) requires that states adopt these statewide data systems as a condition of funding, and further specifies the elements to be included.

Groups affiliated with the Data Quality Campaign, along with other advocates of statewide data systems, have long complained that FERPA hampers the effectiveness of these systems.  They indicate that the student privacy law  limits their ability to share personal information with outside researchers, and hinders their linking education records with pre-school or workforce-related data.  Many of the proposals put forward by these groups were rejected when the Department last revised the FERPA regulations in 2008, yet are included in the current proposal.

Specifically, the new FERPA proposal would substantially increase the number of entities allowed to access personally identifiable student information without the student's or parent's consent.  This would be accomplished by expanding the existing limited exceptions for research, and for audits or evaluations.  The proposed regs also would expand the definition of "education program" to include any education or job training program - even if not operated by an educational authority.  The changes are intended to remove barriers to linking education records with records maintained for pre-school, health and human services, labor, and the like.  This information-sharing would be provided under written agreements.

Private non-profit colleges would be directly affected by the proposed removal of language specifying that the legal authority to conduct an audit, evaluation, or compliance/enforcement activity must be conferred by federal, state, or local law.  The preamble explains that this change is intended to "support the robust use of data by State and local educational authorities . . . This proposed clarification would, for example, establish that FERPA does not prohibit a private postsecondary institution from non-consensually disclosing to an LEA [local educational agency] PII [personally identifiable information] on the LEA's former students who are now in attendance at the private postsecondary institution, as may be necessary for the LEA to evaluate the Federal or State supported education programs that the LEA administers." (Federal Register, April 8, 2011, page 19731)

The proposed regulations also specify that FERPA does not preclude schools from requiring students to wear ID badges, even if they have opted out of sharing directory information.  The proposal also would permit institutions to adopt limited directory information policies.

The Department will be accepting public comments on the proposal until May 23, 2011.  Comments may be submitted through the Federal eRulemaking Portal (2,000-character limit) or by mail to: Regina Miles, U.S. Department of Education, 400 Maryland Avenue, S.W., Washington, DC 20202. Faxes and e-mails will not be accepted. The Docket ID (ED-2011-OM-0002) should be included at the top of your comments.

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