FERPA Allows More Than You May Realize

Recent campus incidents have highlighted the importance of effective communication among administrators, faculty, and staff, as well as between campus representatives and students, families, and surrounding communities. Some commentators have argued that these incidents prove the need to amend the Family Educational Rights and Privacy Act, the federal statute known as FERPA that protects student privacy, in order to permit greater disclosure of information about troubled students. Actually, the current law works well, but colleges and universities need to better understand what that law really provides -- and each institution needs to develop an internal consensus on how to approach the policy choices FERPA allows it to make.

Colleges have worked hard to educate their employees on the importance of protecting student privacy. This effort has been motivated in large part by the need to comply with FERPA. For example, following the terrorist attacks of 9/11, many campuses had to remind their personnel to protect the privacy of students against illegal disclosures of information motivated not by rational concern but by prejudice and bias many outside academe had against certain international students.

Legitimate interests in student development have also motivated concerns for privacy. Under ordinary circumstances, according college students a measure of privacy -- even (or perhaps especially) from their own parents -- can without question help their development into independent, autonomous adults. FERPA itself actually reflects this period of transition by shifting primary legal control of the student’s records from parents to the student once the student attends a college or university.

In some circumstances, FERPA has been invoked as the reason not to share student information, when in reality the law would permit disclosure but the interests of student development and autonomy weigh against it. For example, FERPA permits but does not require colleges and universities to notify a student’s parents of certain drug and alcohol violations of the institution’s disciplinary code. Many institutions do not notify parents of every incident involving a minor illegally in possession of alcohol, choosing instead to begin with an educational intervention to assist the student in making better choices, and only notify parents in cases of repeated, serious, or dangerous violations.

The decision not to disclose less serious violations is a policy decision, and should be understood and described as such. It should not be held out as a decision required by FERPA. Unintended and potentially dangerous consequences can arise if legitimate policy goals are confused with legal mandates because institutions may then forget that FERPA grants them discretion. It is especially important to remember that FERPA expressly permits appropriate disclosures in times of actual or potential emergency, as well as in various less drastic circumstances in which an individual seeks to communicate sincere concerns for a student’s well-being or the public welfare.

Although FERPA restricts disclosures of information obtained from a student’s records, it was never intended to act as a complete prohibition on all communications. One threshold point that is often overlooked is that FERPA limits only the disclosure of records and information from records about a student. It does not limit disclosure or discussion of personal observations.

In other words, if a college or university employee develops a concern about a student based on the employee’s observations of or personal interactions with the student, the employee may disclose that concern to anyone without violating, or even implicating, FERPA. (Of course, there may be other reasons an institution would not want to, or could not, disclose that concern, and, in most cases, the initial disclosure should be made to professionals trained to evaluate and handle such concerns, such as campus mental health or law enforcement personnel, who can then determine whether further and broader disclosures are appropriate).

Even when information is part of a student’s records and therefore covered by FERPA, the law provides several exceptions that permit appropriate communications under circumstances in which the student or others may be at risk of harm. For example, FERPA expressly permits the disclosure of information from a student’s records “…to appropriate parties in connection with an emergency if knowledge of the information is necessary to protect the health or safety of the student or other individuals.”

This exception doesn’t permit indiscriminate disclosures of personal information, but it does set a fairly low threshold of good faith for determining when disclosures are needed to protect health or safety, what disclosures are appropriate, and to whom they may be made. FERPA also permits disclosures, among others, of any information about a student to other college officials with legitimate interests in the information or to the parents of that student if he or she is their dependent for tax purposes; of information regarding the results of certain student conduct proceedings involving violence to the general public; and of any relevant information to other schools where a student seeks or intends to enroll.

The National Association of College and University Attorneys (NACUA) has just published a “FERPA and Campus Safety” Q & A to provide accurate information about FERPA to campus administrators and others. This document answers frequently asked questions about FERPA and suggests important elements to consider in setting institutional policies. And while advocating compliance with FERPA, it also puts into perspective the critical importance of campus and public safety in today's world.

This is not to suggest that colleges and universities that have dealt with complicated situations and made difficult decisions have done so in anything less than good faith. Nor, certainly, is it to say that concerns for student development and autonomy have no place in the analysis when determining what, when, and to whom to disclose. But institutions should recognize these concerns for what they are -- self-imposed policy constraints, not legal mandates -- and balance them accordingly, and responsibly, against other equally relevant policy considerations such as safety. If we don't, others may well make the choice for us, quite likely without full consideration of the factors that are important to us and in ways that we won't like. It is thus critical that colleges and universities evaluate in advance both their understanding of FERPA and how they will exercise their discretion under it in response to campus incidents.

Nancy E. Tribbensee and Steven J. McDonald
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Nancy E. Tribbensee is general counsel for the Arizona University System. Steven J. McDonald is general counsel at the Rhode Island School of Design.

The Bias of Background Checks

A recent survey of college and university officials found that 66 percent of institutions now collect criminal justice information about would-be students, usually through self-disclosure on the application. The survey revealed that a wide range of offenses can get an applicant additional screening that can lead to rejection, and that less than half of the colleges that use this approach have written policies to guide admissions officers or train those employees.

As the head of the Center for Community Alternatives, the organization that asked the American Association of Collegiate Registrars and Admissions Officers to conduct the survey, I am troubled by the survey’s findings. CCA’s core mission is removing the barriers to employment, education and full community reintegration faced by individuals who have been involved in the criminal justice system, and we know, from both the research literature and from our own experience, that access to a higher education can have a profound effect on individual lives. If past criminal convictions are preventing significant numbers of young people from going to college, then we all lose out.

That’s why these colleges’ policies concern us. Seventy-five percent of schools consider any drug or alcohol conviction negatively in spite of how common those offenses are among the college-age population. And one-third of schools consider pending misdemeanors or even misdemeanor arrests in a negative light.

Also disturbing is the ad hoc quality of the procedures used by many of the schools that collect this sensitive information. At the 40 percent of colleges that train staff on how to interpret criminal records, the training is most often provided by campus security or “other staff.” The lack of in depth-training is troubling because criminal records are often inaccurate and almost always more complicated than they may seem at first blush.

A major complication in interpreting criminal records is that state laws vary so greatly that two college applicants from different states, convicted of the same offense at age 15, could end up with entirely different criminal history records. One may end up with an adult record while the other will have no adult record whatsoever. In some states anyone older than 16 can be prosecuted as an adult and end up with a permanent record. In other states the cut-off age is 18, and those who are younger will be processed in the juvenile system, which protects them from a permanent conviction. Without training, admissions officers will not be aware of the vagaries of state criminal records and will be more likely to make arbitrary decisions based on inaccurate facts.

There are important public policy reasons to eschew the collection of criminal history information from college applicants. The fact that African Americans and Latinos are overrepresented in the criminal justice population is no longer open to question. Racial profiling and the heavy concentration of police in low-income, urban neighborhoods have led to high rates of arrest, prosecution and conviction among communities of color. An African American in the city of Los Angeles is seven times as likely to be arrested for marijuana possession, a misdemeanor, as a white person is. A Latino in the same city is twice as likely to be arrested for that offense as a white person. Yet government studies show that whites use marijuana more than either blacks or Latinos. Based on these facts, screening for criminal records cannot be a race-neutral practice.

Are there serious risks involved in not conducting criminal background checks? There is no empirical evidence that students with criminal records present a threat to campus safety. Only one study has investigated the link between criminal history screening and improved safety on campus; no statistical difference in campus crime was found between schools that screen and schools that don’t.

The U.S. Department of Education has concluded that “students on the campuses of post-secondary institutions are significantly safer than the nation as a whole.” The most horrific campus crimes, like the Virginia Tech and Northern Illinois University shootings, are committed by students who don’t have criminal records. Rape and sexual assault are the only crimes showing no statistical differences between college students and non-students, and those offenses are most often committed by inebriated students who have no prior criminal records. Thirty-eight percent of the respondents in our survey reported that they did not use criminal justice information in their admissions processes, and none of them indicated that they believed their campuses were less safe as a result.

Colleges and universities can responsibly refrain from collecting criminal background information about applicants, and by doing so will be able to attract a diverse student body and maintain a safe and secure campus. But if criminal history screening is done, it should be done according to reasonable, fair and written policies and procedures:

  • Remove the disclosure requirement from initial application for admission and ask for criminal justice information only after conditional admission.
  • Limit the disclosure requirement to convictions for felonies (not misdemeanors or infractions) that were committed within the past five years and that were committed after the applicant’s 19th birthday.
  • Establish admissions criteria that are fair and evidence-based, e.g., remove barriers to admission of individuals who are under some form of community supervision and provide an opportunity to document personal growth and rehabilitation.
  • Base admissions decisions on assessments that are well-informed and unbiased by developing in-house expertise and performing an assessment and multi-factor analysis to determine whether a past criminal offense justifies rejection.
  • Establish written procedures that are transparent and consistent with due process. Applicants should be informed in writing of the reason for the withdrawal of an offer of admission and should be afforded the right of appeal.
  • Offer support and advocacy including on-campus support services for students who have criminal records.
  • Evaluate the policy periodically to determine whether it is justified.

There are great social benefits associated with a more educated citizenry — more informed voters, better parents, and a more skilled workforce, to name a few. A college education is a crime prevention tool: colleges and universities promote public safety in the larger community when they open their doors to people with criminal records who demonstrate the commitment and qualifications to pursue higher education.

Marsha Weissman
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Marsha Weissman is executive director of the Center for Community Alternatives. The organization’s full report, "The Use of Criminal History Records in College Admissions Reconsidered," can be downloaded from its website.

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