• Balancing Student Privacy, Campus Security and Public Safety
  • April 18, 2012 | Author: Maria Di Stravolo Elliott
  • Law Firm: Barley Snyder - Lancaster Office
  • The U.S. Department of Education’s Family Policy Compliance Office (FCPO) has released a new guidance on the Family Educational Rights and Privacy Act (FERPA) and the Higher Education Act of 1965 (HEA). The guidance is intended to assist school officials - who may be reassessing their campus safety policies in the wake of several high profile campus emergencies - find the proper balance between student privacy rights and campus security needs.

    FERPA is a Federal law that protects the privacy interests of both parents and students in a student’s “education records.” FERPA generally requires parents or eligible students to provide these institutions with written consent before the school discloses personally identifiable information from a student’s education records. However, in emergency situations, FERPA allows schools to make necessary disclosures without obtaining prior written consent. Part I of the guidance is designed to help school officials recognize these emergency situations where consent is not required for disclosure.

    Under FERPA, personally identifiable information may be disclosed without the consent of a student or parent in the following circumstances:

    1. Health or Safety Emergency
    a. The central exception to FERPA’s disclosure policy is a disclosure to protect the health or safety of the student or other individuals in the event of an actual, impending, or imminent emergency. School officials must believe an “articulable and significant” threat exists to make disclosures under this section.

    2. Personal Knowledge or Observation
    a. FERPA does not prohibit school officials from disclosing information about a student that is obtained through personal observation. However, this general rule does not apply where (1) a school official personally learns of information about a student through an official role in making a determination about the student and (2) the determination is maintained in an education record. For instance, this exception does not apply if the official was involved in formal disciplinary proceedings brought against the student.

    3. Law Enforcement Unit Records
    a. Records of the law enforcement unit of an educational institution are not subject to FERPA if the records are:

    1. created by a law enforcement unit
    2. created for a law enforcement purpose; and
    3. maintained by the law enforcement unit.

    4. Disciplinary Records for Violent and Non-Forcible Sex Offenses
    a. FERPA permits a postsecondary institution to disclose to an alleged victim of any crime of violence or non-forcible sex offense the final results of a disciplinary proceeding conducted by the institution against the alleged perpetrator of that crime regardless of whether the institution concluded that a violation was committed ? without the alleged perpetrator’s consent.

    5. Judicial Order or Lawfully Issued Subpoena
    a. Disclosures made pursuant to a judicial order or lawfully issued subpoena do not require parental or student consent. However, the guidance notes that the institution should generally attempt to notify the affected party prior to making the disclosure so that the parent or student can consult a legal representative and take protective action.

    6. Disclosures to Parents
    a. At postsecondary institutions, FERPA permits parents to have access to their children’s education records, if one of the following requirements is met:

    1. the student is a dependent for income tax purposes;
    2. there is a health or safety emergency involving a parent’s son or daughter;
    3. the student, who is under age 21, has violated any law or institutional policy concerning the use or possession of alcohol or a controlled substance and the institution has determined that the student has committed a disciplinary violation with respect to that use or possession; or
    4. the information is based on a school official’s personal knowledge or observation of the student.

    7. Treatment Records
    a. Under FERPA, medical and psychological treatment records of eligible students may be disclosed to those medical professionals providing the treatment if they are made, maintained, and used only in connection with that treatment. If officials wish to disclose these treatment records for other reasons, they must use a different FERPA exception or seek the necessary party’s consent.

    8. Threat Assessment Teams
    a. Some institutions have created “threat assessment teams” to assist in determining whether a disclosure may be made under FERPA. With a properly-implemented threat assessment program (that includes representatives from local law enforcement), schools can respond to student behavior that raises concerns about a student’s mental health (and the safety of the student and others) that is chronic or escalating. By using a threat assessment team, the institutions may make other disclosures under the health or safety emergency exception, as appropriate, when an “articulable and significant threat” exists.

    The HEA is a Federal law that, in Section 485(f) (also known as the Clery Act), requires all postsecondary institutions participating in the student financial aid programs under Title IV of the HEA to (1) disclose their campus security policies and (2) provide timely warnings to students, parents, and employees of crimes that represent a threat to the campus community. It further requires postsecondary institutions to collect and disseminate crime data to the campus community. Part II of the guidance is designed to give school officials a better understanding of what information must be disclosed under the law.

    What information must be disclosed, and when?

    1. Timely Warnings and Emergency Notification
    a. The Clery Act requires postsecondary institutions to provide timely warnings to alert the campus community of certain crimes. Under the HEA, postsecondary institutions must develop and disclose a statement of policy describing how the institution will handle emergency situations occurring on the campus that present an immediate threat to the health or safety of students or employees. The guidance notes that these provisions do not conflict with FERPA, which allows the release of personally identifiable information without consent in the case of an emergency (which is a threat to health and safety).

    2. Sex Offenses under the HEA
    a. Under the Clery Act, institutions must include a statement of policy regarding the institution’s campus sexual assault programs that prevent sex offenses, as well as procedures to follow if a sex offense occurs, in the institution’s Annual Security Reports. The guidance explains that both the accuser and the accused must be informed of the outcome (meaning the “final determination” and any sanction imposed) of the institutional disciplinary proceeding alleging a sex offense.

    3. Missing Students
    a. The HEA also requires postsecondary institutions that maintain on-campus student housing facilities to establish, for affected students, a missing student notification policy that includes notifying students that they can confidentially register an individual to be contacted if the student is determined to be missing. All students residing in an on-campus student housing facility must be advised that, regardless of whether they register a contact person, the local law enforcement agency will be notified in the event that the student is determined to be missing.

    4. Fire Safety
    a. The HEA requires postsecondary institutions that maintain on-campus student housing facilities to publish an annual fire safety report that discloses campus fire statistics, fire safety practices, and fire safety standards.