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Business and Policy Areas
Business and Policy Areas

ED Proposes Changes to Privacy Rules

April 3, 2008

On March 24, the Department of Education published proposed rules that would make a number of modifications and clarifications to the regulations implementing the Family Educational Rights and Privacy Act (FERPA). FERPA is the primary law protecting the privacy of students’ educational records. Changes address disclosures to third-party servicers and parents, and in health or safety emergencies. Comments will be accepted until May 8.

The proposed regulations are intended to implement several legislative changes to FERPA, respond to Supreme Court rulings, and address other issues that have arisen in administering current rules. Part of the impetus for the proposed clarifications regarding disclosures in health and safety emergencies were concerns voiced in the aftermath of the Virginia Tech shootings that confusion about the privacy rules hindered action to help troubled students.

The following summarizes some of the key clarifications and changes in the proposed rules.

  • Directory information, subject to disclosure without written permission, may not include the student’s social security number or other identification number but may include a user id or electronic identifier that acts as a "name."
  • Educational records of former students continue to be protected, but records created after the student has left the institution are not covered by FERPA.
  • Disclosure to contractors, consultants, and volunteers is allowed if the third party is performing work in place of employees. A number of conditions must be met, however, that are spelled out in this new section of the regulations.
  • Institutions must use reasonable methods to identify and authenticate the identity of students, parents, school officials, or others prior to disclosing educational records.
  • Institutions may not require the accuser to sign a nondisclosure agreement prior to releasing information about the outcome of campus judicial proceedings, as required under the Clery Act.
  • The provision allowing institutions to disclose personal information from education records to appropriate parties in connection with a health or safety emergency would be revised to remove language requiring strict construction of the exception. Under the proposed provision, an institution that determines that there is "an articulable and significant threat to the health or safety of a student or other individuals," may disclose information to appropriate persons. The proposal notes that ED will not substitute its judgment for the institution’s if there is a rational basis for the judgment.

NACUBO urges members to review the proposed regulations and file comments by May 8 if you have suggestions for improvements. Please share your concerns with Anne Gross at NACUBO as well.

NACUBO Contact:   Anne Gross, vice president, regulatory affairs, 202.861.2544.