Imagine for a moment that you are in a dispute with your child’s school over a disciplinary action. Or imagine that you are embroiled in a controversy that has attracted media attention. Now imagine that your child’s school decides to release her disciplinary record or that your grade school teacher decides to tell the media about something unflattering that you did as a child. Both of those scenarios have cropped up in the news (the head of a group of charter schools cited a student’s disciplinary record in defense of her policies; a teacher painted a critical picture of notorious presidential adviser Stephen Miller); both scenarios probably represent a violation of FERPA.
The Family Education Rights and Privacy Act (“FERPA”) gives parents access to the information that a school maintains on their children, permits parents to seek changes to that information, and prohibits unauthorized disclosure of certain information. (When a student turns 18, the ability to control information passes from the parent to the student.) There are certain types of information that a school may release without parents’ prior consent, as long as the school provides prior notice. These types of information include a student’s address and phone number, dates of attendance, and list of activities. However, parents may shield that information from disclosure if they notify the school in writing that they do not want that information treated as “directory information.”
FERPA also allows disclosure of other limited types of information, including peer-graded assignments and law enforcement records. However, not all student records are subject to disclosure. FERPA prevents unpermitted disclosure of other categories of information, including grades, financial information, and disciplinary records. Generally, disclosure is further limited to appropriate audiences: a school may not release information to anyone who does not have a legitimate educational interest in that information. FERPA reflects a commitment to students’ privacy and the right of students and their families to control access to information. While uncomplimentary stories about students are not explicitly prohibited by FERPA, it may be considered the sort of private information that cannot be disclosed to third parties who have no legitimate educational interest in it. (In the case of Stephen Miller’s teacher, she was suspended pending a determination of whether her remarks “complied with applicable privacy policies.”) This commitment means that disciplinary records or uncomplimentary stories cannot be released without repercussions.