UNDERSTANDING AND COMPLYING WITH THE CLERY ACT

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1 UNDERSTANDING AND COMPLYING WITH THE CLERY ACT STETSON UNIVERSITY COLLEGE OF LAW 24TH ANNUAL NATIONAL CONFERENCE ON LAW AND HIGHER EDUCATION POST CONFERENCE WORKSHOP February 19, 2003 Karen J. Stone, General Counsel University of North Florida FERPA ISSUES The Family Educational Rights and Privacy Act ( FERPA ), more commonly known as the Buckley Amendment, has been a part of the landscape of higher education since The primary source of legislative history/legislative intent concerning FERPA is contained in the Joint Statement in Explanation of Buckley/Pell Amendment, 120 Congr. Rec As articulated in the Joint Statement, the purposes of FERPA are to provide a right of access to educational records and to protect individual rights to privacy by limiting the transferability of records without a student or parent s consent. In the context of higher education, FERPA provides students who reach the age of 18 or who attend a postsecondary institution the right to inspect and review their own education records, and to protect their privacy by limiting access to the records by others. Institutions may not disclose information contained in education records without the student s written consent except under conditions specified in the Act. While this sounds fairly straightforward, campus administrators and attorneys understand how very complicated the issues can be. In the context of campus safety 1

2 and security, we are often asked to make difficult decisions concerning what is an educational records; who has a legitimate need to know information from a student s records; what exceptions might apply when misconduct or criminal activity has occurred; and what constitutes a health or safety emergency. Often, the conclusions we reach are at odds with the wishes of a parent, the general public or the press. There is huge pressure surrounding these decisions and a clear understanding of FERPA is essential. Beginning in the late 80 s, we saw a clear shift in public opinion concerning FERPA. Remember that FERPA was enacted in the aftermath of Watergate. There was a huge degree of mistrust in government and a clear desire to protect student privacy. Then came the death of Jeanne Clery and the vigilance of her parents in calling public attention to what was happening on American campuses. Why was information about crime on campus not known? Why were parents and students denied essential information about campus safety when making decisions about where to attend college? Why was FERPA shielding the wrong doers from public disclosure? What about victims rights and the rights of the broader community? As evidence of the clear and direct relationship between FERPA policy and the Clery Act, one need only note that FERPA has only been amended eight times since its passage in 1974, and six of the eight amendments have occurred since passage of the Clery Act. One need only look at the FERPA amendments since 1990 to see their direct relationship to matters of public safety and security: Institutions may disclose to an alleged victim of a crime of violence the results of disciplinary proceedings conducted by the institution against 2

3 the alleged perpetrator of the crime, regardless of the outcome (Campus Security Act of 1990); Campus law enforcement records were excluded from the protection of FERPA as an educational record (FERPA Amendment, 1992); Institutions may include in a student s records relevant information concerning disciplinary action taken against the student for conduct that posed a significant risk to the safety or well being of that student, other students, or other members of the school community (Improving America s School Act of 1994); Institutions may disclose to teachers and school officials disciplinary actions taken against students, including those in other schools, who have a legitimate educational interest in the behavior of the student (Higher Education Amendment of 1998); Institutions may disclose the final results of any disciplinary proceeding involving a crime of violence or nonforcible sex offense to anyone, including the public, if the institution determines the student committed a violation of its rules or policies with respect to the crime (Higher Education Amendments of 1998); Institutions may disclose to a parent or legal guardian information concerning violations of a law or institutional policy concerning the use or possession of alcohol or drugs for students under 21 who have been found 3

4 to have violated an institutional policy or rule (Higher Education Amendments of 1998); Educational Institutions are permitted to disclose information concerning registered sex offenders that they receive from state sex offender registration/community notification programs (Campus Sex Crimes Prevention Act of (2000)); o On October 24, 2002, the Department of Education, Family Policy Compliance Office issued Guidelines concerning the disclosure of educational records concerning registered sex offenders. These guidelines (see Appendix 1) and the Final Guidelines published by the U.S. Department of Justice on October 25, 2002, (67 CFR ), confirm that we are indeed required to provide our campus community with clear guidance as to where they can find information about registered sex offenders (such as campus law enforcement offices, local law enforcement agencies, or computer network addresses). The FPCO guidelines further confirm that FERPA does not prevent campus administrators from disclosing information about registered sex offenders that becomes available to educational institutions through the operation of state sex offender registration and community notification programs. Most recently, FERPA was amended to allow an assistant attorney general or higher ranking federal officer or employee to obtain an ex parte order (a court order issued without notice to the adverse party) upon 4

5 certification to the court that there are specific and articulable facts giving rise to the belief that the education records likely contain information relevant to an authorized investigation or prosecution of domestic or international terrorism. An institution is immune from liability for the good faith release of these records in response to an exparte order of the court (thus, no liability if the student is not notified prior to release of the educational record). FERPA record keeping requirements do not apply. (U.S.A. PATRIOT ACT of 2001, Section 507) o The Department of Education, Family Policy Compliance Office, issued guidance in April 2002, concerning the recent amendments to FERPA relating to antiterrorism activities (see Appendix 2). In addition to addressing the USA PATRIOT ACT, the guidance discusses a broad array of topics including subpoenas, court orders, health and safety emergencies, law enforcement records, directory information and disclosures to the INS. In its discussion of health and safety emergencies, the Department of Education reaffirms its commitment to assist institutions which are in the process of making the often difficult determination of whether a health or safety emergency exists such that information can be released without a student s consent. In addition to actual amendments to FERPA, other laws related to campus security have been adopted since 1990 that further diminish FERPA s guarantees of privacy. These include: 5

6 the Campus Sexual Assault Victim Bill of Rights Act (20 U.S.C. Sec. 1092(f)(7)) (passed in 1992, this law requires that victims of sexual assaults be informed of the outcome of disciplinary proceedings); and, in the context of international students in F, J and M Visa categories, INS regulations which require colleges and universities to collect and report certain information (name, address, academic status, full time attendance, disciplinary action taken as a result of conviction of a crime) to the federal government. FERPA RELATED CASE LAW As an overlay to legislative amendments to FERPA during the 1990 s, institutions also faced legal challenges to our long held position that disciplinary records are education records. In fact, there were a number of state court decisions which expanded public access to student disciplinary records based on the analysis that student disciplinary records were not ʺeducation recordsʺ under FERPA. (See, Red & Black Publishing Co. v. Bd. of Regents of Univ. Sys. of Georgia, 262 Ga. 848, 427 (1993); The State ex rel. The Miami Student et al. vs. Miami Univ. et al., 79 Ohio St. 3d 168, 680 N.E.2d 956 (1997); See also, Lynn M. Daggett and Dixie Snow Huefner, Recognizing Schoolsʹ Legitimate Educational Interests: Rethinking FERPAʹs Approach to the Confidentiality of Student Discipline and Classroom Records, 51 Am.U.L.Rev. 1, 34 (2001); Thomas R. Baker, State Preemption of Federal Law: The Strange Case of College Student Disciplinary Records under FERPA, 149 Educ.L.Rep. 283, 286 (2001). 6

7 These cases were the source of much discussion and public debate, particularly within the higher education legal community and the media. One of the most notable cases involved Miami University. By way of background, in 1995, the Miami University student newspaper issued an Ohio Public Records Act request for university records related to student disciplinary proceedings in order to track crime trends on campus. Miami redacted the identity, sex, and age of the accused, as well as the date, time, and location of the incidents giving rise to disciplinary charges from the records in an attempt to comply with FERPA. Dissatisfied with Miamiʹs limited disclosure, the student newspaper filed an action in the Ohio Supreme Court seeking full disclosure of the records, redacting only the name, social security number, or student ID number of the accused. The Ohio Supreme Court concluded that university disciplinary records were not ʺeducation recordsʺ under FERPA and compelled Miami to provide the records the newspaper requested. Miami sought US Supreme Court review of the Ohio decision, but the Supreme Court denied certiorari. Following this decision, The Chronicle of Higher Education (The Chronicle) filed public records requests for Miami and Ohio State disciplinary records for the years 1995 and This time, the requester wanted the names of the accused students intact. After DOE learned that Miami and Ohio intended to release student disciplinary records containing personally identifying information without student consent, DOE sought an injunction in Federal District Court prohibiting the universities from releasing the information except as permitted under FERPA. The District Court for the Southern District of Ohio permanently enjoined the two universities from disclosing their on campus disciplinary records to the public. Soon thereafter, The Chronicle appealed the District Courtʹs decision to the U.S. Court of Appeals for the Sixth Circuit. 7

8 On June 27th, 2002, the Sixth Circuit unanimously affirmed the District Courtʹs decision that disciplinary records were FERPA ʺeducation recordsʺ and that releasing such records without studentsʹ consent violates FERPA. U.S. v. Miami University, 294 F. 3 rd 797 (6 th Cir. 2002). The Sixth Circuit clarified that although federal courts must defer to a state courtʹs interpretation of state law, federal courts owed no deference to state courtsʹ interpretation of federal statutes such as FERPA. The Chronicle argued that Congress never intended FERPA to protect disciplinary records. The Sixth Circuit stated that a plain language interpretation of FERPA reveals that student disciplinary records are education records because they directly relate to a student and are kept by the studentʹs university. Moreover, if Congress believed that student disciplinary records were not education records then the narrow exemptions to FERPA concerning certain disciplinary records would be unnecessary. The Sixth Circuit noted that law enforcement records are specifically excluded from the FERPA definition of education records. The Court deferred to the Department of Education s administrative rules, noting that these rules draw a clear distinction between student disciplinary records and law enforcement unit records. Lawenforcement units are components of an educational agency or institution officially designated to enforce local, state, or Federal law or maintain physical security and safety. Records created and maintained by law enforcement units used exclusively for non law enforcement purposes, such as disciplinary proceedings, are not records of the law enforcement unit and are education records under FERPA. If a law enforcement unit creates a record for law enforcement purposes and provides a copy to a school official for use in a disciplinary proceeding, that copy of the record is an education record under FERPA. 8

9 The Sixth Circuit rejected the Chronicle s contention that it had a First Amendment right of access to student disciplinary records detailing criminal activities and punishments. The court noted that university disciplinary proceedings are not criminal proceedings. Moreover, student disciplinary records historically have not been open to the public. The court concluded denial of access to this information does not prevent the public from obtaining information about crime on campus from other sources. 9

10 Appendix 1 Family Policy Compliance Office Guidelines: Disclosure of Education Records Concerning Registered Sex Offenders This guidance concerns an amendment to the Family Educational Rights and Privacy Act of 1974 (FERPA), 20 U.S.C. 1232g, enacted by the Campus Sex Crimes Prevention Act (CSPCA), which is 1601 of the Victims of Trafficking and Violence Protection Act of 2000 (Pub. L ). Subsection (d) of the CSCPA amended FERPA to ensure that educational institutions may disclose information concerning sex offenders that they receive under State sex offender registration and community notification programs. See 20 U.S.C. 1232g(b)(7). This amendment took effect on its enactment date of October 28, The CSCPA amendment to FERPA directed the Secretary of Education to take appropriate steps to notify educational institutions that they may disclose information concerning registered sex offenders provided to them under State registration and community notification programs. See 20 U.S.C. 1232g(b)(7)(B). In order to notify educational institutions of this amendment to FERPA, the Secretary of Education has issued this guidance. 2 1 However, the CSCPA s requirements that (1) registered sex offenders must provide notice, as required under State law, of each institution of higher education where they are employed or enrolled; (2) States must make this information available to a law enforcement agency where the institution of higher education is located; and (3) institutions of higher education must advise the campus community where the information on registered sex offenders can be obtained, do not become effective until October 28, See Campus Sex Crimes Prevention Act, Pub. L. No , 1601(b) and (c), 114 Stat. 1537, 1538 (to be codified at 20 U.S.C. 1092(f)(1) and 42 USC (j)). 2 The Secretary of Education also will soon issue a proposed amendment to the FERPA regulations at 34 C.F.R to reflect that prior written consent is not required for these disclosures. 10

11 A Federal law, the Jacob Wetterling Crimes Against Children and Sexually Violent Offenders Registration Act (the Wetterling Act ), provides minimum national standards for State sex offender registration and community notification programs. To comply with the Wetterling Act s standards, States must establish programs that require current address registration by residents of the State who have been convicted of sexually violent offenses or offenses involving sexual abuse or exploitation of minors, as described in the Act. The Wetterling Act s standards also require States to accept registration information from non-resident offenders who have entered the State to work or attend school. The Wetterling Act provides generally that States must release relevant information concerning persons required to register as necessary to protect the public. See 42 U.S.C (Wetterling Act provisions); 64 Fed. Reg. 572 (Jan. 5, 1999) (Attorney General s guidelines for the Wetterling Act). The CSCPA supplemented the Wetterling Act s general standards for sex offender registration and community notification programs by enacting provisions which are more specifically designed to ensure that the members of campus communities have information available concerning the presence of registered sex offenders. In part, this included an amendment to the Wetterling Act which requires States to obtain information concerning registered sex offenders enrollment or employment at institutions of higher education, and to make this information available promptly to a campus police department or other appropriate law enforcement agency having jurisdiction where the institution is located. See 42 U.S.C (j) (Wetterling Act provisions added by the CSCPA amendment); 67 Fed. Reg (October 25, 2002) (Attorney General s guidelines for the amendment). The CSCPA also enacted two amendments to Federal education laws. One of these is an amendment to the Higher Education Act of 1965 which requires institutions of higher education to advise the campus community where it can obtain the information about registered sex offenders provided by the State (pursuant to 42 U.S.C (j)), such as the campus law enforcement office, a local law enforcement agency, or a computer network address. See 20 U.S.C. 1092(f)(1)(I). The other is the FERPA amendment, which makes it clear that FERPA does not prevent educational institutions from disclosing such information: (A) Nothing in this section may be construed to prohibit an educational institution from disclosing information provided to the institution under section of the Violent Crime Control and Law Enforcement Act of 1994 (42 U.S.C ) concerning registered sex offenders who are required to register under such section. (B) The Secretary shall take appropriate steps to notify educational institutions that disclosure of information described in subparagraph (A) is permitted. 20 U.S.C. 1232g(b)(7). The legislative history to the FERPA amendment also confirms that FERPA does not prevent educational institutions from disclosing information about registered sex offenders: 11

12 In order to ensure that the information [about registered sex offenders] is readily accessible to the campus community, the Campus Sex Crimes Prevention Act requires colleges and universities to provide the campus community with clear guidance as to where this information can be found, and clarifies that Federal laws governing the privacy of educational records do not prevent campus security agencies or other administrators from disclosing such information. 146 Cong. Rec. S10216 (Oct. 11, 2000) (remarks of Senator Kyl, sponsor of the CSCPA); see H. Conf. Rep. No. 939, 106th Cong., 2d Sess. 110 (2000) (conference committee report for the CSCPA) (the CSCPA [a]mends the Family Educational Rights and Privacy Act of 1974 to clarify that nothing in that Act may be construed to prohibit an educational institution from disclosing information provided to the institution concerning registered sex offenders ). Thus, nothing in FERPA prevents an educational institution from disclosing information provided to the institution under the Wetterling Act concerning registered sex offenders, including personally identifiable, non-directory information from education records that is disclosed without prior written consent or other consent from the person. The authority of educational institutions to make such disclosures extends both to information about registered sex offenders made available by a State in carrying out the specific requirements of the CSCPA (42 U.S.C (j)), and information about registered sex offenders that may otherwise become available to educational institutions through the operation of State sex offender registration and community notification programs. 3 While the CSCPA amendments to the Wetterling Act and the Higher Education Act affect only institutions of higher education, both institutions of higher education and other educational institutions are covered by the CSCPA amendment to FERPA. The Family Policy Compliance Office, the Office in the Department that administers FERPA, broadly interprets the term educational institution in the amendment to FERPA to be consistent with the use of the term in the Wetterling Act. The Wetterling Act defines the term student as a person who is enrolled on a full-time or part-time basis, in any public or private educational institution, including any secondary school, trade, or professional institution, or institution of higher education. 42 U.S.C (a)(3)(G). Thus, because the Wetterling Act broadly applies to students enrolled in any educational 3 Readers are advised that the United States Supreme Court has granted certiorari to review the constitutionality of sex offender registration and community notification laws in two States. Specifically, the Supreme Court granted certiorari on the question whether Alaska s sex offender registration and community notification law imposes punishment in violation of the Constitution s prohibition of ex post facto legislation. See Glenn G. Godfrey, et. al. v. John Doe I, et al., No (Feb. 19, 2002). The Supreme Court also granted certiorari on whether the Due Process Clause of the Fourteenth Amendment prevents the State of Connecticut from listing convicted sex offenders in a publicly disseminated registry without first affording such offenders individualized hearings on their current dangerousness. See Connecticut Department of Public Safety, et al. v. John Doe, et al., No (May 20, 2002). 12

13 institution, the CSCPA amendment to FERPA similarly should be interpreted so as not to prohibit disclosures by an educational institution to which FERPA applies. Further, the Department of Education will not take federal funds away from any local educational agency (LEA) on account of the LEA s policy or practice of releasing information that a State (or any agency authorized by a State) provides to the LEA under the Wetterling Act on a registered sex offender enrolled in an educational institution within the LEA. In sum, this guidance clarifies that nothing in FERPA prevents educational institutions from disclosing information concerning registered sex offenders provided under the Wetterling Act, including information made available under the CSCPA amendment to that Act and information otherwise made available under State sex offender registration and community notification programs. This guidance is available on the Family Policy Compliance Office s Web site at: School officials with questions about FERPA in general, or this issue in particular, may send inquiries to: FERPA@ED.Gov. 13

14 Dear Colleague: APPENDIX 2 Amendments to Family Educational Rights and Privacy Act Relating to Anti-Terrorism Activities April 12, 2002 The purpose of this guidance is to provide you with an overview of recent changes made by Congress to the Family Educational Rights and Privacy Act (FERPA) in response to the September 11th terrorist attacks on the United States. In so doing, we also will provide an overview of the relevant provisions of current law. The changes to FERPA became effective on October 26, 2001, when the President signed into law the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism (USA PATRIOT ACT) Act of (Public Law ; 115 Stat. 272.) Section 507 of the USA PATRIOT ACT amends FERPA, and is attached for your convenience at the end of this letter. Overview of FERPA FERPA is a federal law that applies to educational agencies and institutions that receive federal funds under any program administered by the Secretary of Education. 20 U.S.C. 1232g; 34 C.F.R. Part 99. Generally, FERPA prohibits the funding of an educational agency or institution that has a policy or practice of disclosing a student s education record (or personally identifiable information contained therein) without the consent of the parent. When a student turns 18 years old or attends a postsecondary institution at any age, the rights under FERPA transfer from the parent to the student ( eligible student ). FERPA defines education records as those records, files, documents and other materials which (i) (ii) contain information directly related to a student; and are maintained by an educational agency or institution or by a person acting for such agency or institution. 20 U.S.C. 1232g(a)(4)(A)(i) and (ii). FERPA generally requires prior written consent from the parent or eligible student before an educational agency or institution may disclose personally identifiable information from education records to a third party. However, the law contains 16 exceptions to this general rule. Pertinent exceptions that allow release of personally identifiable information without prior written consent are discussed below. 14

15 Ex Parte Orders Significantly, the recent amendment to FERPA permits educational agencies and institutions to disclose without the consent or knowledge of the student or parent personally identifiable information from the student s education records to the Attorney General of the United States or to his designee in response to an ex parte order in connection with the investigation or prosecution of terrorism crimes specified in sections 2332b(g)(5)(B) and 2331 of title 18, U.S. Code.4 An ex parte order is an order issued by a court of competent jurisdiction without notice to an adverse party. In addition to allowing disclosure without prior written consent or prior notification, this provision amends FERPA s record keeping requirements (20 U.S.C. 1232g(b)(4); 34 C.F.R ). As a result, FERPA, as amended, does not require a school official to record a disclosure of information from a student s education record when the school makes that disclosure pursuant to an ex parte order. Further, an educational agency or institution that, in good faith, produces information from education records in compliance with an ex parte order issued under the amendment shall not be liable to any person for that production. A copy of the new statutory language follows this guidance. The Department will be working with the Department of Justice in the implementation of this new provision. In addition to this guidance, we will be amending and updating the FERPA regulations to include this new exception to the written consent requirement. You should address any questions you have on the new amendment to FERPA@ED.Gov. Lawfully Issued Subpoenas and Court Orders FERPA permits educational agencies and institutions to disclose, without consent, information from a student s education records in order to comply with a lawfully issued subpoena or court order in three contexts. 20 U.S.C. 1232g(b)(1)(J)(i) and (ii), (b)(2)(b); 34 C.F.R (a)(9). These three contexts are: 1. Grand Jury Subpoenas Educational agencies and institutions may disclose education records to the entity or persons designated in a Federal grand jury subpoena. In addition, the court may order the institution not to disclose to anyone the existence or contents of the subpoena or the institution s response. If the court so orders, then neither the prior notification requirements of 99.31(a)(9) nor the recordation requirements at 34 C.F.R would apply. 2. Law Enforcement Subpoenas Educational agencies and institutions may disclose education records to the entity or persons designated in any other subpoena issued for a law enforcement purpose. As with Federal grand jury subpoenas, the issuing court or agency may, for good cause shown, order the 4 These statutes define Federal crimes of terrorism as offenses calculated to influence the conduct of government such as destruction of aircraft, assassination, arson, hostage taking, destruction of communications lines or national defense premises, and use of weapons of mass destruction. 15

16 institution not to disclose to anyone the existence or contents of the subpoena or the institution s response. In the case of an agency subpoena, the educational institution has the option of requesting a copy of the good cause determination. Also, if a court or an agency issues such an order, then the notification requirements of 99.31(a)(9) do not apply, nor would the recordation requirements at 34 C.F.R apply to the disclosure of education records issued pursuant to the law enforcement subpoena. 3. All other Subpoenas In contrast to the exception to the notification and record keeping requirements described above, educational agencies or institutions may disclose information pursuant to any other court order or lawfully issued subpoena only if the school makes a reasonable effort to notify the parent or eligible student of the order or subpoena in advance of compliance, so that the parent or eligible student may seek protective action. Additionally, schools must comply with FERPA s record keeping requirements under 34 C.F.R when disclosing information pursuant to a standard court order or subpoena. Health or Safety Emergency FERPA permits non-consensual disclosure of education records, or personally identifiable, non-directory information from education records, in connection with a health or safety emergency under 99.31(a)(10) and of the FERPA regulations. In particular, 99.36(a) and (c) provide that educational agencies and institutions may disclose information from an education record 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 and that the exception will be strictly construed. Congress intent that the applicability of this exception be limited is reflected in the Joint Statement in Explanation of Buckley/Pell Amendment, 120 Cong. Rec. S21489 (Dec. 13, 1974). Accordingly, the Department consistently has limited the health and safety exception to a specific situation that presents imminent danger to a student, other students, or other members of the school community or to a situation that requires the immediate need for information from education records in order to avert or diffuse serious threats to the safety or health of a student or other individuals. For example, the health or safety exception would apply to nonconsensual disclosures to appropriate persons in the case of a smallpox, anthrax or other bioterrorism attack. This exception also would apply to nonconsensual disclosures to appropriate persons in the case of another terrorist attack such as the September 11 attack. However, any release must be narrowly tailored considering the immediacy, magnitude, and specificity of information concerning the emergency. As the legislative history indicates, this exception is temporally limited to the period of the emergency and generally will not allow for a blanket release of personally identifiable information from a student s education records. Under the health and safety exception school officials may share relevant information with appropriate parties, that is, those parties whose knowledge of the 16

17 information is necessary to provide immediate protection of the health and safety of the student or other individuals. 20 U.S.C. 1232g(b)(1)(I); 34 C.F.R (a). Typically, law enforcement officials, public health officials, and trained medical personnel are the types of parties to whom information may be disclosed under this FERPA exception. FERPA s record keeping requirements ( 99.32) apply to disclosures made pursuant to the health or safety exception. The educational agency or institution has the responsibility to make the initial determination of whether a disclosure is necessary to protect the health or safety of the student or other individuals. However, the Department is available to work with institutions to assist them in making such decisions in order to ensure that the disclosure comes within the exception to FERPA s requirement of prior written consent. In short, the health or safety exception will permit the disclosure of personally identifiable information from a student s education record without the written consent of the student in the case of an immediate threat to the health or safety of students or other individuals. Of course, a school official, based on his or her own observations, may notify law enforcement officials of suspicious activity or behavior. Nothing in FERPA prohibits a school official from disclosing to federal, State, or local law enforcement authorities information that is based on that official s personal knowledge or observation and not from an education record. Law Enforcement Unit Records Under FERPA, schools may disclose information from law enforcement unit records to anyone including federal, State, or local law enforcement authorities without the consent of the parent or eligible student. FERPA specifically exempts from the definition of education records and thereby from the privacy restrictions of FERPA records that a law enforcement unit of a school district or postsecondary institution creates and maintains for a law enforcement purpose. A law enforcement unit is an individual, office, department, division, or other component of a school district or postsecondary institution such as a unit of commissioned officers or noncommissioned security guards that is officially authorized or designated by the school district or institution to: (1) enforce any federal, State, or local law; or (2) maintain the physical security and safety of the school. See 34 C.F.R FERPA narrowly defines a law enforcement record as a record that is: (i) created by the law enforcement unit; (ii) created for a law enforcement purpose; and (iii) maintained by the law enforcement unit. 34 C.F.R. 99.8(b). While other components of an educational institution generally can disclose, without student consent, student education records to school law enforcement units (under FERPA s exception for school officials with legitimate educational interests), these records are not thereby converted into law enforcement unit records because the records were not created by the law enforcement unit. Thus, a law enforcement unit cannot disclose, without student consent, information obtained from education records maintained by other components of an educational institution. 17

18 Directory Information FERPA s regulations define directory information as information contained in an education record of a student that would not generally be considered harmful or an invasion of privacy. 34 C.F.R Specifically, directory information includes, but is not limited to the student s name, address, telephone listing, electronic mail address, photograph, date and place of birth, major field of study, dates of attendance, grade level, enrollment status (e.g., undergraduate or graduate, full-time or part-time), participation in officially recognized activities or sports, weight and height of members of athletic teams, degrees, honors and awards received, and the most recent educational agency or institution attended. Id. A school may disclose directory information from the education records without prior consent only after giving notice to the student of its directory information policy, and providing parents and eligible students with an opportunity to opt out of having their directory information disclosed. See 34 C.F.R Under FERPA, a school may not comply with a request for directory information that is linked to other non-directory information. For instance, a school cannot disclose directory information on students of a certain race, gender, or national origin. However, the school could disclose directory information on all students (who have not opted out) to law enforcement authorities who may be requesting directory information. Disclosures to the Immigration and Naturalization Service (INS) The Immigration and Naturalization Service (INS) requires foreign students attending an educational institution under an F-1 visa to sign the Form I-20. The Form I- 20 contains a consent provision allowing for the disclosure of information to INS. The consent provision states that, I authorize the named school to release any information from my records which is needed by the INS pursuant to 8 C.F.R (g) to determine my nonimmigrant status. This consent is sufficiently broad to permit an educational institution to release personally identifiable information of a student who has signed a Form I-20 to the INS for the purpose of allowing the INS to determine the student s nonimmigrant status. Students that have an M-1 or J-1 visa have signed similar consents and education records on these students may also be disclosed to the INS. Finally, we anticipate there may be a need for additional guidance in the future on other INS disclosure issues. 18

19 Technical Assistance on FERPA For additional guidance on these or other provisions of FERPA contact the Family Policy Compliance Office at the following address and telephone number: Family Policy Compliance Office U.S. Department of Education 400 Maryland Avenue, SW Washington, D.C (202) Telephone (202) Fax Additionally, schools officials may contact the Family Policy Compliance Office by e- mail for quick, informal responses to routine questions about FERPA. That address is: The Web site address is: Sincerely, /s/ LeRoy S. Rooker Director Family Policy Compliance Office Enclosure 19

20 FERPA R Public Law , October 26, 2001; 115 Stat. 272 "Uniting and Strengthening America Act by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism (USA PATRIOT ACT) Act of 2001" SEC DISCLOSURE OF EDUCATIONAL RECORDS. [115 Stat ] Section 444 of the General Education Provisions Act (20 U.S.C. 1232g), is amended by adding after subsection (i) a new subsection (j) to read as follows: ``(j) Investigation and Prosecution of Terrorism. ``(1) In general.--notwithstanding subsections (a) through (i) or any provision of State law, the Attorney General (or any Federal officer or employee, in a position not lower than an Assistant Attorney General, designated by the Attorney General) may submit a written application to a court of competent jurisdiction for an ex parte order requiring an educational agency or institution to permit the Attorney General (or his designee) to-- ``(A) collect education records in the possession of the educational agency or institution that are relevant to an authorized investigation or prosecution of an offense listed in section 2332b(g)(5)(B) of title 18 United States Code, or an act of domestic or international terrorism as defined in section 2331 of that title; and "(B) for official purposes related to the investigation or prosecution of an offense described in paragraph (1)(A), retain, disseminate, and use (including as evidence at trial or in other administrative or judicial proceedings) such records, consistent with such guidelines as the Attorney General, after consultation with the Secretary, shall issue to protect confidentiality. ``(2) Application and approval.-- ``(A) In general.--an application under paragraph (1) shall certify that there are specific and articulable facts giving reason to believe that the education records are likely to contain information described in paragraph (1)(A). ``(B) The court shall issue an order described in paragraph (1) if the court finds that the application for the order includes the certification described in subparagraph (A). ``(3) Protection of educational agency or institution. An educational agency or institution that, in good faith, produces education records in accordance with an order issued under this subsection shall not be liable to any person for that production. ``(4) Record-keeping.--Subsection (b)(4) does not apply to education records subject to a court order under this subsection.''. 20