Legislation and Guidance
- ED Issues Notice of Proposed Rulemaking for FERPA Regulations
- Farm Bill Advocates May Look to Appropriations
Reports
Legislation and Guidance
ED Issues Notice of Proposed Rulemaking for FERPA Regulations
On March 24th, the U.S. Department of Education (ED) published a Notice of Proposed Rulemaking (NPRM) in the Federal Register proposing changes to the Family Educational Rights and Privacy Act (FERPA) regulations. These proposed changes would represent a sweeping revision of the FERPA regulations. A number of the proposed changes have already been addressed by statute, but are not reflected in the FERPA regulations. In addition, the newly proposed regulations incorporate U.S. Supreme Court precedents and ED policy letters, address privacy issues raised by the shooting incident at Virginia Tech, clarify legal requirements in recognition of advancements in technology, and address the use of private contractors, consultants and other service providers.
The significant changes to the FERPA regulations, located within 34 CFR Part 99, are as follows:
- Student identifiers as directory information
The proposed regulations specifically provide that an educational agency or institution may not designate as directory information a student’s Social Security Number (SSN) or other student ID number. However, the directory information may include a student’s user ID or other unique identifier used by the student to access or communicate in electronic systems, but only if the electronic identifier cannot be used to gain access to education records except when used in conjunction with one or more factors that authenticate the student’s identity, such as a personal identification number (PIN), password or other factor known or possessed only by the student. The current regulations do not specifically prohibit the designation of SSNs or student identifiers as directory information.
- "De-identified" student data
The proposed rules provide objective standards under which educational agencies and institutions may release, without consent, education records or information from education record, that has been de-identified through the removal of all personally identifiable information. The amendment would consider “information that is requested by a person who an agency or institution reasonably believes has direct, personal knowledge of the identity of the student to whom the education record directly relates” to be personally identifiable information that could not be disclosed. This is referred to as a “targeted request.” This addresses a concern addressed by educational institutions regarding media requests for redacted information, known as targeted requests, within education records of students involved in well-known incidents. For instance, if only one student is suspended in a specific month and a member of the media requests a redacted copy of all suspension forms for that time period, the school cannot disclose that information as it personally identifies the student.
- Returning data to the record creator
The proposed regulations would exclude from the definition of “disclosure” the release or return of an education record, without consent, to the party identified as the party that created the record. The purpose of this proposed change is that school officials have reported receiving what appear to be falsified transcripts, letters of recommendation, and other student information claiming to be from educational agencies and institutions; this would allow a school or college to verify the accuracy of this type of information without FERPA concerns.
- State auditors exception
The proposed regulations would clarify that educational agencies and institutions may provide personally identifiable information within education records to state auditors without prior consent without violating FERPA.
- Regulating parental opt out
The proposed rules would provide that a parent or eligible student may not use the right to opt out of directory information disclosures to prevent an educational agency or institution from disclosing or requiring a student to disclose the student’s name, electronic identifier or institutional e-mail address in a class in which the student is enrolled. ED reasoned that “the right to opt out of directory information disclosures is not a tool for students to remain anonymous in class.”
- USA Patriot Act
To conform with the requirements of the USA Patriot Act, the proposed regulations would make clear that educational institutions must disclose education records to the attorney general in response to an ex parte court order as part of an investigation or prosecution related to potential terrorism. This change was codified in the FERPA statutes, but has not been reflected in the applicable regulations.
- Campus Sex Crimes Prevention Act
To conform with the requirements of the Campus Sex Crimes Prevention Act, the new FERPA regulations would permit campus officials to release information they received from a state community notification program about a student registered as a sex offender in the State. ED notes that nothing in the FERPA laws or regulations requires or encourages the collection or maintenance of information about registered sex offenders.
- Sexual offense allegations
The proposed regulations would prohibit a college or school from requiring a victim of an alleged sexual offense to agree not to disclose information he or she receives from the institution about the alleged perpetrator as part of a campus disciplinary proceeding. According to ED, “Some postsecondary institutions have required the accuser to execute a non-disclosure agreement before they disclose the outcome of a disciplinary proceeding for an alleged sexual offense as required under the [Jeanne Clery Disclosure of Campus Security Policy and Campus Crime Statistics Act]…The proposed regulations would clarify that postsecondary institutions may not require the accuser to execute a non-disclosure agreement or otherwise interfere with the redisclosure or other use of information disclosed as required under the Clery Act.”
- Expanding ED’s authority to investigate
The proposed rules make clear that, as suggested by the U.S. Supreme Court in Gonzaga University v. Doe (Outside Source), 536 U.S. 273 (2002), ED has the authority to investigate possible violations of FERPA even if a complaint by a parent has been withdrawn or no complaint has ever been filed. ED stated that “[T]he department needs to establish in its regulations that the Office may investigate allegations of non-compliance provided by a school official or some other party who is not a parent or eligible student because sometimes parents and students are not aware of an ongoing FERPA problem that needs to be addressed.”
- Peer-graded assignments
The proposed regulations would clarify that peer-graded assignments that have not been collected and recorded by a teacher are not considered “maintained by” and educational agency or institution, such that they are not “education records” covered by FERPA. This change brings the regulations in alignment with the reasoning in the U.S. Supreme Court’s decision in Owasso Independent School Dist. No. I–011 v. Falvo, 534 U.S. 426 (2002) regarding the legality of peer-graded assignments under FERPA.
- Outsourcing services
The proposed rules would extend to contractors, consultants and others who work with a college or school the exception that allows educational institutions to disclose personally identifiable information about a student to school officials who have “legitimate educational interests in the information.” The proposed regulations stress that “the outside party who obtains access to education records without consent must be under the direct control of the agency or institution and subject to the same conditions governing the use and redisclosure of education records that apply to other school officials.” The proposed amendment also requires that educational agencies and institutions that outsource institutional services and functions comply with the annual FERPA notification requirement to parents and eligible students by specifying their contractors, consultants and volunteers who will be retained for these purposes. Currently, educational agencies and institutions are using contractors under an exception that allows for “authorized representatives” to access personally identifiable information in education records in accordance with technical assistance guidance issued by ED’s Family Policy Compliance Office (FPCO).
- Organizations conducting studies
The proposed regulations require an educational agency or institution that discloses education records, without consent, to organizations conducting studies on its behalf to enter into a written agreement with the recipient organization that specifies the purposes of the study. The written agreement must specify that the information from education records may only be used to meet the purposes of the study stated in the written agreement, that the records must not be redisclosed, and that the information must be destroyed upon completion of the study.
- New student enrollment
The proposed rules would allow an educational agency or institution to share information about a student without his or her consent with officials at another institution in which the student has already enrolled. The current regulations only allow schools and colleges to share information, without parental or student consent, with other institutions in which the student seeks or intends to enroll. The proposed regulation clarifies that after the student enrolls, a school or college may transfer education record’s to the student’s new school or college in connection with the student’s enrollment. ED also determined that an educational agency or institution may update, correct, or explain information it has disclosed to another educational agency or institution as part of the original disclosure, without written student consent. The student’s previous institution is not required to obtain prior written consent to respond to the new institution’s request to explain the meaning of education records sent to it in connection with a student’s new enrollment.
- Parental rights for higher education students
ED, citing concerns that “some institutions are under the mistaken impression that FERPA prevents them from providing parents with any information about a college student,” aims to emphasize in the proposed regulations that current laws and rules allow colleges to make information available to parents of financially dependent students without their consent, and to any student (even if he or she is not financially dependent on the parents) under several exceptions to the law. This issue is addressed in the current regulations, but ED seeks to clarify the exceptions in the proposed regulations.
- "Health and safety" exceptions
The proposed regulations clarify the “health and safety” exception, in which educational institutions are allowed to disclose education records in the case of a health or safety emergency. In the wake of the Virginia Tech shootings, there was confusion among college administrators, and state and local officials as to potential liability for educators who disclosed education records and what, objectively, constitutes a health and safety emergency. The proposed language allows an educational agency or institution to take into account the totality of the circumstances pertaining to a threat to the safety or health of a student or other individuals. If the educational agency or institution determines that there is an “articulable and significant threat” to the health or safety of a student or other individuals, it may disclose information from education records to third parties whose knowledge of the information is necessary to protect them. ED stated that as long as there is a “rational basis” for that determination at the time the decision is made, it would not substitute its judgment for that of the educational agency or institution.
- Internet-based learning
Reflecting changing technology, the proposed rules would clarify that students who study online (or otherwise are not physically present in the classroom) are covered by FERPA. The existing regulations extend the law to students studying via correspondence, but do not address those who are taught by electronic instruction.
If you have comments in response to this NPRM, please submit them through the Federal eRulemaking Portal or via postal mail, commercial delivery, or hand delivery. ED must receive the comments no later than May 8, 2008. ED does not accept comments by fax or by e-mail. ED requires that parties submitting comments include the Docket ID (for this Federal Register Notice, the applicable ID is [Docket ID ED–2008–OPEPD–0002]) at the top of your comments. The specific instructions for submitting a comment are as follows:
- Via Federal eRulemaking Portal (Outside Source). Under "More Search Options" click on the "Advanced Document Search" link, select ‘‘Department of Education’’ from the agency drop-down menu; then click "Submit." In the Docket ID column, select ED– 2008–OPEPD–0002 to add or view public comments and to view supporting and related materials available electronically. Information on using Regulations.gov, including instructions for submitting comments, accessing documents, and viewing the docket after the close of the comment period, is available through the site’s "User Tips" link, located under the "How to Use This Site" menu on the left.
- Via Postal Mail, Commercial Delivery, or Hand Delivery. If you mail or deliver your comments about these proposed regulations, address them to Mr. LeRoy S. Rooker, U.S. Department of Education, 400 Maryland Avenue, SW., Room 6W243, Washington, DC 20202–5920.
Farm Bill Advocates May Look to Appropriations
As Congress returns next week, lawmakers will have just three weeks to bring the Farm Bill to conference, and finally to the President before the current extension runs out on April 18. Both President Bush and Speaker of the House Nancy Pelosi (D-CA) remain opposed to extending the Farm Bill any further. As Senator Tom Harkin (D-IA) and other leaders prepare for a final push, school nutrition advocates remain committed to seeing that the nutrition title of the bill gets an appropriate amount of attention.
While Congress and the Whitehouse cannot seem to agree on the overall spending for the bill, House Republicans are working on a backup proposal that would keep baseline spending at $280 billion over the next five years. The Bush Administration gave its tentative approval for a proposal that went $6 billion above the baseline, but Senate Democrats want to move forward with a $10 billion proposal. The President remains an obstacle, refusing to sign any bill that does not offset all additional costs and does not include any tax increases. Until a baseline is agreed to, many of the Farm Bill’s specific programs will remain largely ignored.
In an effort to try to keep the nutrition title of the Farm Bill fresh on lawmakers’ minds, advocates continue to meet with congressional staffers to discuss the expansion of the Fresh Fruit and Vegetable Program (FFVP). While these efforts remain focused on Farm Bill conferees, some school nutrition consortiums are beginning to make contingency plans. If Congress fails to pass a new Farm Bill, interested parties are already speaking to staffers in an attempt to keep the FFVP expansion through the appropriations process.
Unfortunately, many appropriators are already feeling the strain, already going over what they expect their spending caps to be after a joint budget resolution is passed. This will make it very difficult to try to get the $250 million that Senator Harkin intended for the FFVP. At the very least, advocates are working to ensure that states will at least receive the $250,000 they are set to receive from the fiscal year 2008 omnibus bill. This small amount will not go far in most states, but it will keep the national expansion in place, making it that much easier to work for more funding in subsequent fiscal years. This still remains a backup plan, with most lawmakers and advocates hoping that Congress and the President are able to pass a long term Farm Bill this month.
Reports
Analysis Shows More Higher Ed Earmarks
Back in the 109th Congress, lobbying and ethics reform became a hot button issue. Of the many Congressional practices that came under scrutiny, earmark reform became a lasting debate. The process by which members of Congress appropriate money for specific spending projects gained more national attention than ever before. While many pundits and lobbyists thought this could be the end of earmarks, the fiscal year 2008 (FY08) appropriations omnibus bill proved that not only is it business as usual, but business is good.
Congress set aside a record $2.3 billion in pet projects for colleges and universities last year according to The Chronicle of Higher Education’s report on Monday. That is $300 million more than the $2.01 billion in 2003, the last time The Chronicle completed such an analysis. When the publication first analyzed earmarks in 1990, legislators set aside $270 million for colleges and universities. Now that the public is paying more attention to earmarks, members of Congress can gain even more publicity with their constituents when they earmark funds for their district.
While earmarks go beyond academia, they are particularly controversial in higher education because they bypass the normal route for financing peer-reviewed scientific research. Typically, research proposals submitted to government entities like the National Institutes of Health and the National Science Foundation are selected after intensive reviews by scientific panels and are based on broad national priorities. Critics say that universities, by lobbying home-state legislators, can receive more money with less scrutiny.
Despite calls for a moratorium from stalwarts like Congressman Jeff Flake (R-AZ) and Senator Tom Coburn (R-OK), many lawmakers defend the earmark practice, saying it enables them to support important local institutions and to encourage research that stimulates economic development or to addresses other public needs in their states. Although all three presidential candidates supported a moratorium on earmarks, the Senate rejected the idea on March 13, falling 31 votes short of the 60 needed to overcome a procedural hurdle.
Senator Barack Obama (D-IL) obtained 10 earmarks worth a total of $19 million while Senator Hilary Clinton (D-NY) was responsible for 21 earmarks worth $70 million. Clinton’s earmarks came in as the sixth-highest total in the Senate. Meanwhile, Senator John McCain (R-AZ), who has criticized earmarks as wasteful, did not introduce any last year. With the proposed moratorium having failed, interested parties can expect more of the same this year when appropriators begin their work in the coming weeks.
Resource
Alan Finder, “Study Finds Record Education Earmarks,” New York Times, March 24, 2008.
GAO Report on NCLB
Earlier this month, the Government Accountability Office released a report analyzing Section 1003 of the No Child Left Behind Act (NCLB), the 4 percent set-aside for school improvement and its hold harmless provision.
NCLB allows a 4 percent state reservation of Title I, Part A funds to carry out school improvement activities for schools identified for improvement under the law. Of this 4 percent, 95 percent must go directly to local educational agencies for schools identified for improvement under the law. Yet, state educational agencies (SEAs) cannot take this set-aside if it would decrease the amount of funds each LEA receives. This is the "hold harmless" provision.
The report is a response to a Congressional request to investigate whether Congress should eliminate the hold harmless provision during NCLB’s reauthorization, as the U.S. Department of Education (ED) is proposing.
In its analysis, GAO studied (1) the extent to which states have set aside these funds and used other resources for school improvement; (2) which schools received improvement funds and the extent to which funds are tracked; (3) the activities states and schools have undertaken and how activities are assessed and (4) how ED supports state improvement efforts.
Some notable findings from the report include:
- Twenty-two states have been unable to set aside the full four percent of the Title I funds for one or more years.
- Six of the twenty-two states have been unable to set aside the full 4 percent for three or more years.
- Nationwide, in 2005, states provided schools in corrective action a median grant of approximately $55,000, schools planning for restructuring received a median grant of $50,000 and schools in restructuring a median grant of $96,442.
- Thirty-eight states target funds from other federal programs intended to promote student achievement, including Comprehensive School Reform Demonstration Program, Reading First and teacher and principle quality programs under Title II.
- Seventeen states have contributed almost $2.6 billion in state funds for school improvement activities since NCLB was enacted.
- In 2006, ten states retained more than five percent (of the 4 percent set-aside) to directly provide school improvement services to schools or arrange for other entities to provide these services. The retention of more than 5 percent of the 4 percent set-aside requires approval by the local educational agency as required by section 1003(b)(2) of NCLB.
- ED’s monitoring guide now includes specific questions about how states allocate school improvement funds, whether all funds have been spent and what guidance the state provided to districts.
- One state allocated Title I improvement funds to districts in improvement with no schools in improvement without first determining that it had excess funds for improvement as required by NCLB. GAO referred this issue to ED for follow up.
- ED is planning to collect information on how states assess school improvement activities as part of the new school improvement grants program that Congress funded for the first time last year.
In conclusion, GAO found that the hold harmless provision does in fact reduce the state set-aside and the reduction diminishes the SEA's ability to target funds for school improvement at the lowest performing schools. Yet, it is not known how removing the hold harmless provision would affect the districts that benefit from its protection. Accordingly, the GAO recommends that ED analyze the effects of removing the hold harmless provision of the law. It also recommends that ED review its monitoring to ensure that states comply with NCLB requirements for the allocation and prioritization of the of school improvements funds, and, finally, that ED provide guidance on when and how states are to make information available about which school receive improvement funds.
Resources
No Child Left Behind Act: Education Actions Could Improve the Targeting of School Improvement Funds to Schools Most in Need of Assistance. (Government Accountability Office: March 25, 2008), GAO-08-380 (Outside Source).
