Ferpa in the twenty-first century: Failure to effectively regulate privacy for all students

Catholic University Law Review

Volumn 58, Issue 1, 2009, Pages 59-112

  Daggett, Lynn M ^a  

^a GONZAGA UNIVERSITY   (United States)

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EID: 64249156491     PISSN: 00088390     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Review

References (469)

1. See Lynn Daggett, Bucking Up Buckley I: Making the Federal Student Records Statute Work, 46 CATH. U. L. REV. 617, 620-21 (1997) [hereinafter Daggett, Bucking Up Buckley I].
2. 20 U.S.C. § 1232g (2000 & Supp. V 2005).
3. See generally Daggett, Bucking Up Buckley I, supra note 1 (overview of FERPA and suggestions for change);
4. Lynn M. Daggett, Bucking Up Buckley II: Using Civil Rights Claims to Enforce the Federal Student Records Statute, 21 SEATTLE U. L. REV. 29, 29-67 (1997) [hereinafter Daggett, Bucking Up Buckley II] (overview of remedies under FERPA);
5. Lynn M. Daggett & Dixie Snow Huefner, Recognizing Schools' Legitimate Educational Interests: Rethinking FERPA's Approach to the Confidentiality of Student Discipline and Classroom Records, 51 AM. U. L. REV. 19-48 (2001) [hereinafter Daggett & Heufner, Recognizing Schools ' Legitimate Interests] (discussion of the Tenth Circuit decision in Falvo and the Miami University discipline records case);
6. Dixie Snow Huefner & Lynn M. Daggett, FERPA Update: Balancing Access to and Privacy of Student Records, 152 EDUC. L. REP. 469, 469-91 (2001) [hereinafter Huefner & Daggett, FERPA Update] (updated overview of FERPA).
7. See infra note 21 and accompanying text.
8. Owasso Indep. Sch. Dist. No. I-011 v. Falvo, 534 U.S. 426, 430, 436 (2002).
9. Gonzaga Univ. v. Doe, 536 U.S. 273, 276, 290 (2002).
10. 20 U.S.C. § 1232g (2000 & Supp. V 2005).
11. See DEP'T OF EDUC., LEGISLATIVE HISTORY OF MAJOR FERPA PROVISIONS 1 (2002), available at http://www.ed.gov/policy/gen/guid/fpco/pdf/ferpaleghistory. pdf (noting that "FERPA was offered as an amendment on the Senate floor and was not the subject of Committee consideration. Accordingly, traditional legislative history for FERPA as first enacted is unavailable").
12. 20 U.S.C. §1221(2000).
13. For overviews of FERPA, see JAMES A. RAPP, EDUCATION LAW § 13.04, F7.03, T7 (2008) (Section 13.04 is a comprehensive overview of FERPA; § F7.03 has sample student records forms and policies; § T7 lists state student records laws);
14. OONA CHEUNG ET AL., NAT'L CTR. FOR EDUC. STATISTICS, PROTECTING THE PRIVACY OF STUDENT RECORDS: GUIDELINES FOR EDUCATION AGENCIES (1997), available at http://nces.ed.gov/pubs97/97527.pdf (comprehensive overview of FERPA and sample forms); John E. Theuman, Validity, Construction, and Application of Family Educational Rights and Privacy Act of 1974 (20 U.S.C.S. § 1232g), 112 A.L.R. FED. 1, 14-20 (1993);
15. Family Educational Rights and Privacy Act (FERPA), http://www.ed.gov/ policy/gen/guid/fpco/ferpa/index.html (last visited Dec. 21, 2008) (includes text of regulations and links to model policies and letters of finding).
16. For academic commentary on FERPA see generally Thomas Baker, Inaccurate and Misleading: Student Hearing Rights under FERPA, 114 EDUC. L. REP. 721 (1997);
17. Daggett, Bucking Up Buckley I, supra note 1; Daggett, Bucking Up Buckley II, supra note 3;
18. Daggett & Huefner, Recognizing Schools' Legitimate Educational Interests, supra note 3;
19. Huefner & Daggett, FERPA Update, supra note 3;
20. Maureen Rada, The Buckley Conspiracy: How Congress Authorized the Cover-Up of Campus Crime and How it Can be Undone, 59 OHIO ST. L.J. 1799 (1998) (discussing the Ohio Supreme Court decision in the Miami University case).
21. See Huefner & Daggett, FERPA Update, supra note 3, at 470.
22. 20 U.S.C. § 1232g(b)(lH2) (2000 & Supp. V 2005);
23. id. § g(a)(l)(A) (2000).
24. See Huefner & Daggett, FERPA Update, supra note 3, at 477-84 (discussing exceptions to non-disclosure). For example, a California court rejected a parent challenge to a school's sharing a student's records with the (non-attorney) consultant who was representing the district in a special education dispute about the student's program. Tyler L. v. Poway Unified Sch. Dist., No. D037558, 2002 WL 423467, at *3 (Cal. Ct. App. Mar. 19, 2002).
25. The court held that sharing the records did not violate FERPA, relying in part on the "legitimate educational interests" exception, which permits schools to share student records internally with employees and other agents who have a legitimate educational interest in them. Id. at *2 & n.6.
26. 20 U.S.C. § 1232g(b)(l) (Supp. V 2005).
27. Id. § 1232g(a)(2) (2000).
28. Id. § 1232g(d).
29. Education Amendments of 1974, Pub. L. No. 93-380, § 513, 88 Stat. 484, 571-72 (1974).
30. 20 U.S.C. § 1232g(a)(4)(A). A Joint Statement in Explanation of Buckley/Pell Amendment provides guidance on the purpose of this change: This [change in the definition of education records] is a key element in the amendment. An individual should be able to know, review, and challenge all information-with certain limited exceptions-that an institution keeps on him, particularly when the institution may make important decisions affecting his future, or may transmit such personal information to parties outside the institution. 20 CONG. REC. 39, 862 (1974).
31. 20 U.S.C. § 1232g(a)(4)(B)(ii).
32. Id. § 1232g(a)(4)(B)(i).
33. A Westlaw search in the SCT database for "1232g" on September 7, 2002 identified only two Court citations to FERPA. In a case exploring whether employers must share information with a union about its psychological testing program for employees as part of good-faith bargaining under the federal labor statute, the Court took notice that people are sensitive about disclosure of information that bears on their competence, citing FERPA and other laws to support this proposition. Detroit Edison Co. v. NLRB, 440 U.S. 301, 318 n.16 (1979).
34. In its seminal student procedural due process case, the Court held that suspensions from school triggered due process obligations, in part because such suspension would be included in student records which would likely find their way to colleges and prospective employers, in accordance with the limitations of the newly enacted FERPA; thus, such discipline could stigmatize the suspended students. Goss v. Lopez, 419 U.S. 565, 575 n.7 (1975).
35. 534 U.S. 426 (2002).
36. 536 U.S. 273 (2002).
37. See id. at 275 (noting Roberts's appearance for petitioner Gonzaga University).
38. Id. at 276, 290.
39. Falvo, 534 U.S. at 436.
40. Peer grading is the practice in which "[t]eachers . . . ask students to score each other's tests, papers, and assignments as the teacher explains the correct answers to the entire class." Id. at 428.
41. For a discussion of the Court's analysis of § 1983 actionability of federal statutes, see Lynn M. Daggett, Student Privacy and the Protection of Pupil Rights Act as Amended by No Child Left Behind, 12 U.C. DAVIS J. JUV. L. & POL'Y 51, 68-73 (2008) [herinafter Daggett, Student Privacy].
42. In prior cases, the Court briefly examined whether the statute in question created benefits which were determinate enough to be enforceable. The Gonzaga Court shifted the analysis to a search for affirmative congressional intent to make the statute actionable through a private cause of action or a § 1983 claim, intent which the Court hinted was not likely to be present in Spending Clause legislation. Gonzaga, 536 U.S. at 283.
43. In applying this standard to FERPA, the Court distinguished statutes such as Title VI and Title IX, which are couched in the language of individual rights, with statutes such as FERPA, which mentions rights repeatedly in both its text and title, but which the Court found to be couched in systemic language and hence not to create private rights. Id. at 284 & n.3.
44. The Court had held on earlier occasions that the language of a statute is the best indicator of legislative intent. Nw. Airlines, Inc. v. Trans. Workers Union, 451 U.S. 77, 91 (1981).
45. Gonzaga, 536 U.S. at 290.
46. Subsequent to Gonzaga, a federal appeals court held that claims of violations of FERPA provisions providing for access to one's own records are not actionable under § 1983. See Taylor v. Vt. Dep't of Educ, 313 F.3d 768, 785-86 (2d Cir. 2002).
47. Justice Stevens's dissent noted that the majority's decision was contrary to the great weight of federal appellate court authority: "Since FERPA was enacted in 1974, all of the Federal Courts of Appeals expressly deciding the question have concluded that FERPA creates federal rights enforceable under § 1983. Nearly all other federal and state courts reaching this issue agree with these Circuits." Gonzaga, 536 U.S. at 299 (Stevens, J., dissenting) (footnote omitted);
48. see also id. at 299 n.7 (noting that the majority cites only a single state-court case that actually held that FERPA is not actionable under § 1983).
49. There is a public remedy - the Department of Education can initiate proceedings to terminate a school district's federal education funds if the school is not in "substantial" compliance. See id. at 279, 288 (majority opinion) (citing 20 U.S.C. §§ 1234c(a), 1232g(f) (2000)).
50. This is of course a drastic remedy, and one that has apparently never been invoked nor even initiated. See Daggett, Bucking Up Buckley II, supra note 3, at 41.
51. This point is so well settled that Rule 11 sanctions may be levied against persons who assert a private cause of action under FERPA. Cf. Sargent v. U.S. Dep't of Educ, No. 07-C-618, 2007 WL 3166943, at *4-5 (E.D. Wis. Oct. 25, 2007) (involving pro se FERPA and Privacy Act claims by a medical doctor of denial of access to his own medical school records from his enrollment almost fifty years earlier and access to records of communication between medical school and FPCO concerning his request; the court dismissed the FERPA claim and ordered plaintiff to answer defendant medical school's motion for sanctions under Fed. R. Civ. P. 11);
52. see also Sargent v. U.S. Dep't of Educ, No. 07-C-618, 2007 WL 3228821, at *l-2 (E.D. Wis. Oct. 31, 2007) (issuing later ruling in same case that plaintiff would pay school's reasonable attorney's fees and costs for violating Rule 11; although plaintiff was pro se, attorney for defendant medical school met with plaintiff and explained Gonzaga and other FERPA case law to him and provided an advance copy of motion for sanctions and plaintiff pursued FERPA claim).
53. State-law claims in those states with statutes governing student records may have private enforcement remedies. Cf. Daniel S. v. Bd. of Educ. of York Cmty. High Sch., 152 F. Supp. 2d 949, 951 (N.D. Ill. 2001) (permitting in part a private claim under Illinois state student records law);
54. Ibata v. Bd. of Educ. of Edwardsville Cmty. Unit. Sch. Dist. No. 7, 851 N.E.2d 658, 660-61 (Ill. App. Ct. 2006) (same).
55. See, e.g., Dutkiewicz v. Hyjek, 135 F. App'x 482, 483 (2d Cir. 2005);
56. Frazier v. Fairhaven Sch. Comm., 276 F.3d 52, 67-68 (1st Cir. 2002) (suggesting that Congress intended public and not private enforcement of FERPA);
57. Hayes v. Williamsville Cent. Sch. Dist., 506 F. Supp. 2d 165, 170 n. 10 (W.D.N. Y. 2007); Millington v. Temple Univ. Sch. of Dentistry, No. Civ. A. 04-3965, 2006 WL 83447, at *3-4 (E.D. Pa. Jan. 9, 2006);
58. Shelton v. Trs. of Columbia Univ., No. 04 Civ. 6714(AKH), 2005 WL 2898237, at *3 (S.D.N.Y. Nov. 1, 2005) (holding a university's alleged denial of access to dismissed student of his records insufficient to establish a FERPA claim);
59. Deptford Twp. Sch. Dist. v. H.B., Civil No. 01-0784(JBS), 2005 WL 1400752, at *14 (D.N.J. June 15, 2005);
60. Curto v. Smith, 248 F. Supp. 2d 132, 140-41 (N.D.N.Y. 2003) (dismissing a veterinary school student's claim that the school had shared her failure on an exam with members of the public and others);
61. Slovinec v. DePaul Univ., 222 F. Supp. 2d 1058, 1061 (N.D. Ill. 2002) (providing no claim available to student who asserted faculty refused to write references unless the student waived his right of access, a demand explicitly prohibited by FERPA), aff'd, 332 F.3d 1068 (7th Cir. 2003);
62. M.P. v. Indep. Sch. Dist. No. 721, 200 F. Supp. 2d 1036, 1045 (D. Minn. 2002) (rejecting a FERPA claim by a schizophrenic student that a school employee had discussed the student's condition in front of classmates);
63. Cherry v. LeDeoni, No. 99 CV 6860(SJ), 2002 WL 519717, at *2, *4-5 (E.D.N.Y. Mar. 31, 2002);
64. Daniel S., 152 F. Supp. 2d at 954.
65. See Daggett, Bucking Up Buckley II, supra note 3, at 42-43.
66. For example, defamation claims can only be successful when the plaintiff proves the statements made about her are false. When schools disclose truthful information about students (for example, their grades, or IQ or other test scores), defamation would not be a viable claim. Id. at 43.
67. In United States v. Miami University, the Department of Education asked the Department of Justice to enforce FERPA and thereafter the federal government sought injunctive relief against a private university for alleged FERPA violations. 294 F.3d 797, 804 & n.6 (6th Cir. 2002).
68. The suit began well before the Gonzaga case, but the Sixth Circuit ruled after Gonzaga, holding that the decision did not affect the availability of federal enforcement. Id. at 818 & n.20.
69. The Miami University court held that specific FERPA and General Education Provisions Act (GEPA) language, as well as "inherent power to sue to enforce conditions imposed on the recipients of federal grants, " provided authority for federal enforcement of FERPA. Id. at 807-08 (citing 20 U.S.C. § 1232g(f) (2000) (FERPA) and 20 U.S.C. § 1234c(a) (2000) (GEPA), as well as Supreme Court precedent regarding federal suits to enforce spending clause legislation). Miami University is apparently the only occasion where the federal government has sued to enforce FERPA, although GEPA appears to explicitly authorize federal enforcement. See 20 U.S.C. § 1234c.
70. See Daggett & Huefner, Recognizing School's Legitimate Educational Interests, supra note 3, at 19-23, for an extended discussion of the Miami University case.
71. 34 C.F.R. §§ 99.60(a) - (b) (2001).
72. The two dissenters attacked both the majority's announced doctrine and its application to FERPA. Applying the prior standard, the dissent found FERPA's language was mandatory, in fact actually used the word "rights" numerous times, was aimed at a specific class of students and parents, and created rights such as access to one's own records which were less ambiguous than ones found by the Court to be actionable under § 1983 in other cases. Gonzaga, 536 U.S. at 293-95 (Stevens, J., dissenting). As to the majority's emphasis on FERPA's use of systemic language, the dissent noted that a systemic problem might be a requirement for individual relief, but still created individual rights. Id. at 295-96.
73. The dissent also criticized the majority's intermixing of private cause of action cases with § 1983 enforcement. Id. at 296-97.
74. Turning to the second, "comprehensive enforcement" prong of the analysis, the dissent reviewed the FPCO complaint and termination of federal funding remedies available under FERPA and found them to "fall far short" of being comprehensive remedies that would render unnecessary enforcement under § 1983. Id. at 297-98.
75. Finally, the dissent noted that all federal appeals courts addressing the issue had found FERPA to be actionable under § 1983. Id. at 299 & nn.6-7.
76. Id. at 298 (Stevens, J., dissenting).
77. See, e.g., id. at 292 (Breyer, J., concurring) (stating that "much of [FERPA's] key language is broad and nonspecific, " specifically questioning the scope of records covered under FERPA).
78. Justice Breyer noted that FERPA "is open to interpretations that . . . favor confidentiality almost irrespective of conflicting educational needs or the importance, or common sense, of limited disclosures in certain circumstances." Id.
79. The dissent lists the numerous instances where FERPA's text uses the word "right" and purports to convey specific rights. Id. at 293-94 (Stevens, J., dissenting).
80. The majority seemed concerned that if FERPA were interpreted to confer individual, enforceable rights, it would "set [Congress] resolutely against a tradition of deference to state and local school officials." Id. at 286 n.5 (majority opinion).
81. Id. at 287-88.
82. See Weixel v. Bd. of Educ. of City of N.Y., 287 F.3d 138, 151 (2d Cir. 2002) (holding multiple alleged privacy violations by a single school were insufficient to establish a FERPA claim); Popson v. W. Clark Cmty. Sch., 230 F. Supp. 2d 910, 949 (S.D. Ind. 2002) (holding that a teacher's personal notes were not FERPA records); Daniel S. v. Bd. of Educ. of York. Cmty. High Sch., 152 F. Supp. 2d 949, 951-52, 954 (N.D. Ill. 2001) (single disclosure by a gym teacher to a team that he had kicked two students out of class after allegedly forcing them to "stand naked in front of their classmates, " yelling profanities at them, and likening them to "those kids at Columbine" does not constitute policy or practice required for a FERPA violation, nor do other alleged FERPA violations by this same teacher amount to a requisite policy or practice); Mele v. Travers, 741 N.Y.S.2d 319, 321 n.2 (App. Div. 2002) (suggesting that the parent must show that school policy resulted in the FERPA violation). Recently promulgated regulations clarify that valid FPCO complaints are not limited to allegations of patterns or practices of FERPA violations, but may instead assert a single FERPA violation. See Family Education Rights and Privacy, 73 Fed. Reg. 74, 806, 74, 854 (Dec. 9, 2008) (to be codified at 34 C.F.R. § 99.64(a)). The regulations also provide that FPCO may issue a finding of noncompliance based on a single violation. See id. at 74, 855 (to be codified at 34 C.F.R. § 99.66(c)). In addition, FPCO may initiate investigations of FERPA violations even if no complaint has been filed. See id. (to be codified at 34 C.F.R. § 99.64(b)).
83. Lewin v. Cooke, 28 F. App'x 186, 192 (4th Cir. 2002).
84. See, e.g., Daniel S., 152 F. Supp. 2d at 951 (involving claim under Illinois state student records law);
85. Ibata v. Bd. of Educ. of Edwardsville Cmty. Unit. Sch. Dist. No. 7, 851 N.E.2d 658, 660 (Ill. App. Ct. 2006) (discussing claim based on Illinois law).
86. For an overview of state education privacy laws, see Susan P. Stuart, A Local Distinction: State Education Privacy Laws for Public Schoolchildren, 108 W. VA. L. REV. 361 (2005).
87. Doe v. Gonzaga Univ., 24 P.3d 390, 393 (Wash. 2001), rev'd, 536 U.S. 273 (2002).
88. The bulk of the Gonzaga jury's damages award ($950, 000 of $1, 155, 000) came from the defamation ($500, 000) and FERPA/§ 1983 ($450, 000) claims. Id. at 396.
89. After the Gonzaga decision, FERPA/§ 1983 claims are no longer available. Defamation claims can only be successful when the plaintiff proves the statements made about her are false. Most unauthorized disclosures under FERPA involve accurate information (for example, unauthorized sharing of a student's grades or IQ test scores); thus defamation claims will normally be unavailable for FERPA violations involving disclosure. FERPA can also be violated by failing to give parents/adult student access to their own records, by not offering requesting parents/adult students an internal hearing to challenge the accuracy of their own records, or by not providing parents/adult students with an annual notification of their FERPA rights. In these scenarios, too, defamation claims would not succeed. In short, defamation is not, absent unusual circumstances, a viable claim when FERPA is violated. Three of the other claims were not directly about the alleged FERPA violation. The negligence claim in Gonzaga was not directly a FERPA claim, but instead alleged a breach by the school of its duty to perform a reasonable investigation of rape allegations and resulted in a jury award of $50, 000 in damages. See id. at 393-94, 396, 398-99.
90. The Washington Supreme Court upheld the appellate court's decision reversing the jury award on negligence, holding that the school had no duty to investigate and therefore that no breach had occurred. Id. at 399.
91. Similarly, the breach of educational contract claim (which resulted in a jury award of $55,000) related to school handbook language providing students accused of misconduct with a chance to be heard, rather than a FERPA violation. See id. at 396, 402-03.
92. Finally, the plaintiff in Gonzaga was awarded $100,000 for invasion of privacy, which was reinstated by the Washington Supreme Court. That court held that the school's investigation, pursuant to the rape allegation, into the plaintiffs "personal relationships, habits, and even anatomy . . . [invaded] the intimate details of a [teacher certification] candidate's sex life." Id. at 399.
93. This "highly offensive" intrusion into the plaintiffs private affairs, required to succeed with the claim, was a violation of his privacy. Id. at 399-400.
94. See generally Daggett, Bucking Up Buckley II, supra note 3, at 45-55 (explaining the process involved when bringing a civil rights suit against a school that violates FERPA).
95. See Atria v. Vanderbilt Univ., 142 F. App'x 246, 248, 253-54 (6th Cir. 2005) (dismissing plaintiff's negligence per se claim, but allowing negligence claim to proceed).
96. See, e.g., CM. v. Bd. of Educ. of Union County Reg'l High Sch. Dist., 128 F. App'x 875, 883-84 (3d Cir. 2005) (holding that plaintiff had no reasonable expectation of privacy in nondisclosure to attorneys, experts, insurance carrier, and other persons involved in parent's IDEA litigation and OCR complaint);
97. Risica v. Dumas, 466 F. Supp. 2d 434, 440-41 (D. Conn. 2006) (granting school's summary judgment motion because a student whose "hit list" on the outside of his geography book was seen by a school janitor, and was then disclosed to a student on the list and to school staff, had no claim as the court found FERPA did not create the reasonable expectation of privacy necessary to such a claim).
98. Cf. C.N. v. Ridgewood Bd. of Educ, 430 F.3d 159, 161, 181-82 (3d Cir. 2005) (finding no constitutional violation related to survey of middle and high school students asking about drug and alcohol use, sexual matters, suicide attempts, and relationships; the court stated that the government interest in obtaining the information outweighed any invasion of privacy, particularly given the intended voluntary and anonymous nature of the survey);
99. Fields v. Palmdale Sch. Dist., 427 F.3d 1197, 1207-08 (9th Cir. 2005) (stated that the Constitution does not prohibit schools from conducting a survey of elementary school students asking about sexual matters; emphasis on voluntariness of the survey in rejecting the constitutional privacy claim). Now-Justice Alito joined in the C.N. opinion.
100. Gens v. Casady Sch., 177 P.3d 565, 571-72 (Okla. 2008).
101. Frank v. Univ. of Toledo, No. 3:06 CV 1442, 2007 WL 4590982, at *7 (N.D. Ohio Dec. 28, 2007).
102. Id. at *8.
103. Lachtman v. Regents of Univ. of Cal., 70 Cal. Rptr. 3d 147, 166-68 (Ct. App. 2007).
104. Owasso Indep. Sch. Dist. No. I-011 v. Falvo, 534 U.S. 426, 428-29 (2002).
105. See Falvo v. Owasso Indep. Sch. Dist. No. I-011, 233 F.3d 1203, 1208 (10th Cir. 2000), rev'd, 534 U.S. 426 (2002).
106. Part of the parent's concern stemmed from the stigma that she perceived this practice inflicted on one of her children, who was disabled. Specifically, the parent claimed that the peer grading and calling out of grades resulted in class-wide knowledge of the grades her child received. Id. at 1207.
107. However, the parent did not include an IDEA, § 504, or ADA disability discrimination claim, nor a claim that the IDEA'S records provisions were violated, in her suit. Id. at 1208.
108. The Falvo opinion does not of course resolve whether the peer grading practice at issue in Falvo violates disability laws. In a recent case, a schizophrenic student claimed that a school employee had discussed his condition in front of other students. M.P. v. Indep. Sch. Dist. No. 721, 200 F. Supp. 2d 1036, 1037 (D. Minn. 2002), rev'd, 439 F.3d 865 (8th Cir. 2008). The Court held that the student could prevail on a § 504 claim if he showed that the school acted with deliberate indifference. Id. at 1040-41.
109. Falvo, 534 U.S. at 428-29.
110. The parent also asserted a constitutional privacy claim, but the constitutional privacy claim was rejected by the trial court and the Tenth Circuit. Falvo v. Owasso Indep Sch. Dist. No. I-011, 233 F.3d 1203, 1207-08 (10th Cir. 2000). The Supreme Court's grant of certiorari was limited to the statutory FERPA issue. Falvo, 534 U.S. at 430.
111. Falvo, 534 U.S. at 430 (quoting 20 U.S.C. § 1232g(a)(4)(A)(ii) (2000)).
112. The Tenth Circuit agreed with the parent that the practice violated FERPA. Id.
113. Id. at 436.
114. Recently promulgated regulations codify this holding. See Family Educational Rights and Privacy, 73 Fed. Reg. 74, 806, 74, 852 (Dec. 9, 2008) (to be codified at 34 C.F.R. § 99.3(b)(6)).
115. See supra Part II.
116. Falvo, 534 U.S. at 433-34.
117. Id.
118. The Court did not recognize that peer graders relieved teachers of significant tasks, thus also performing an unpaid service of benefit to the school. The opinion thus of course does not address when or if a task with multiple purposes (such as learning and assisting the school) performed by a student is done by a person "acting for" a school who must comply with FERPA. What of, for example, the student who assists a teacher outside of instructional time by grading papers? The opinion also does not recognize alternative peer grading practices, which would have avoided FERPA problems. Law school students and faculty are familiar with using exam numbers rather than names on exams and other graded work. In some law schools, legal research and writing faculty use peer grading to help students develop their skills by having students edit and critique classmate papers identified by number rather than name. The concurring opinion agreed with the majority that peer graders are not persons acting for schools and thus papers in possession of the peer graders are not FERPA records. Id. at 436 (Scalia, J., concurring in the judgment).
119. The concurring opinion does not explain its reasoning on this point, except to refer to the "ordinary meaning" of the phrase a "person acting for" a school. Id.
120. Id. at 433 (majority opinion). The Court did not hold that student status in all cases precludes coverage under FERPA. The Court did not hold, for example, that students actually hired by or given an official unpaid role by schools as tutors, or teacher assistants with grading responsibilities, are excluded from FERPA. To have so held would have meant that common university practices of using graduate students to teach sections of large classes, grade exams, or tutor students, and of using work-study students in offices, such as the office of the registrar, which works with student records, would be unregulated by FERPA. This in turn would mean such graduate and work-study students either could not have access to student records under FERPA, and thus in many cases could not be employed at all, or that such students could be hired and then disclose student information at will without violating FERPA.
121. Id. at 432-34.
122. Id. at 433 (citation omitted).
123. Schools often receive educational and other evaluations from outside persons, such as an independent evaluator selected by the parents under the IDEA, or juvenile court or psychiatric records for students returning to school after incarceration or hospitalization. Limiting "maintained" records to those permanently kept by a school would mean that after schools read and destroyed these records, the school could publicly disclose their contents without violating FERPA.
124. Id. at 436 (noting the Court's limited holding that "grades on students' papers would not be covered under FERPA at least until the teacher has collected them and recorded them in his or her grade book").
125. Id. at 433.
126. In presentations to educators on FERPA, I use the term "myth of the manila folder" to discuss how FERPA covers records well beyond those maintained, often in a manila folder, by a registrar for university students and in a central office for elementary and secondary students.
127. Id. at 434 (discussing the single access log required by FERPA for certain nonconsensual disclosures of student records, implying that "Congress contemplated that education records would be kept in one place with a single record of access").
128. The Court further described that "FERPA implies that education records are institutional records kept by a single central custodian, such as a registrar." Id. at 434-35.
129. Id. at 436 (Scalia, J., concurring in the judgment).
130. Confidential notes kept, for example, by a counselor of a meeting with a student that are not accessible to any third party, including other school officials, and thus of course are not in a permanent file maintained by a central custodian. See 20 U.S.C. § 1232g(a)(4)(B)(i) (2000).
131. Falvo, 534 U.S. at 437 (Scalia, J., concurring in the judgment).
132. Id.
133. Id.
134. See id. at 431-32 (majority opinion) (citing Brief for Petitioners at 17, Falvo, 534 U.S. 426 (2001) (No. 00-1073);
135. Brief for United States as Amicus Curiae at 14, Falvo, 534 U.S. 426 (2001) (No. 00-1073)).
136. Cf. Unincorporated Operating Div. of Ind. Newspapers, Inc. v. Trs. of Ind. Univ., 787 N.E.2d 893, 906 (Ind. Ct. App. 2003) (holding that Falvo should not be read as limiting FERPA records to those maintained by a central custodian).
137. Falvo, 534 U.S. at 437 (Scalia, J., concurring in the judgment) (noting that FERPA's exclusion of teacher notes as sole possession notes would be superfluous if only records maintained in a central file were covered by FERPA).
138. For example, FERPA also excludes law enforcement records, which are normally not centrally maintained but are kept by a school's security unit. 20 U.S.C. § 1232g(a)(4)(B)(ii) (2000). It limits access to postsecondary schools' health records, which are normally kept at a school's health center. Id. § 1232g(a)(4)(B)(iv). It excludes adult students' right of access to parent financial aid statements, which are normally kept at a school's financial aid office. Id. § 1232g(aXl)(C)(i).
139. See supra note 18 and accompanying text.
140. 20 U.S.C. § 1232g(a)(4)(A).
141. See generally Daggett & Huefner, Recognizing Schools' Legitimate Educational Interests, supra note 3, at 12-29.
142. United States v. Miami University, 294 F.3d 797, 812-15 (6th Cir. 2002).
143. Id. at 812-13.
144. Owasso Indep. Sch. Dist. No. I-011 v. Falvo, 534 U.S. 426, 432 (2002) (indicating that to do so would "effect . . . a substantial change in the balance of federalism").
145. Id. 434.
146. Id.
147. Id. at 435 (citing 20 U.S.C. § 1232g(a)(2) (2000)) (imagining challenges to grades "on every spelling test and art project"). In fact, Congress and the courts have stated that FERPA hearings are not available to contest the fairness of grades. Daggett, Bucking Up Buckley I, supra note 1, at 638.
148. Falvo, 534 U.S. at 435. This argument of course recognizes that the student peer graders perform a service of substantial benefit to the teacher and thus to the school in addition to enhancing their own learning.
149. Id.
150. Id. at 435-36.
151. This proposal was made in an earlier work by the author. See Daggett & Huefner, Recognizing Schools ' Legitimate Educational Interests, supra note 3, at 45-47.
152. See Daniel S. v. Bd. of Educ. of York Cmty. High Sch., 152 F. Supp. 2d 949, 954 (N.D. Ill. 2001) (finding teacher's ejection of students from class was known by many including the other students in that class; hence, disclosure of this information to others does not violate FERPA).
153. Bd. of Trs., Cut Bank Pub. Sch. v. Cut Bank Pioneer Press, 160 P.3d 482, 483-84, 488 (Mont. 2007).
154. Id. 487.
155. Rome City Sch. Dist. v. Grifasi, 806 N.Y.S.2d 381, 383 (Sup. Ct. 2005).
156. Wallace v. Cranbrook Educ. Cmty., No. 05-73446, 2006 WL 2796135, at *4-5 (E.D. Mich. Sept. 27, 2006).
157. Risica v. Dumas, 466 F. Supp. 2d 434, 441 (D. Conn. 2006).
158. BRV, Inc. v. Superior Court, 49 Cal. Rptr. 3d 519, 526-27 (Ct. App. 2006) (ordering production of report under state public records law with names redacted).
159. The Home School Non-Discrimination Act of 2005 would have prohibited release of directory information about private school and home-schooled students without written parental consent, and narrowed the disclosure exception for testing, research and student aid organizations. H.R. 3753, 109th Cong. § 7 (2005); S. 1691, 109th Cong. § 7 (2005). Another bill proposed a blanket exclusion of home schooled students from FERPA. H.R. 130, 109th Cong. § 1 (2005).
160. One bill would have created a private cause of action for FERPA violations in federal court. Remedies would have included injunctions and damages, with treble damages available for willful or knowing violations. The bill did not authorize reimbursement of attorney's fees. Student Privacy Protection Act of 2006, H.R. 6315, 109th Cong. § 2 (2006).
161. Seemingly in response to the tragic shooting at Virginia Tech, the Mental Health Security for America's Families in Education Act of 2007 would amend FERPA to explicitly permit higher education institutions to share certain
162. For post-Virginia Tech overviews of when colleges may share information about at-risk students with parents or others without student consent (that is, to parents of financially dependent students, law enforcement unit records, unrecorded information, health and safety emergencies, certain drug and alcohol issues of under twenty-one-year-old students), see Disclosure of Information from Education Records to Parents of Postsecondary Students, http://www.ed.gov/print/policy/gen/guid/fpco/hottopics/ht-parents- postsecstudents.html (last visited Dec. 22, 2008).
163. See also Nancy E. Tribbensee & Steven J. McDonald, FERPA and Campus Safety, NACUANOTES, Aug. 6, 2007, http://www.nacua.org.
164. Another bill would require postsecondary education institutions to disclose discipline results of certain violent or sexual offenses to alleged victims, supplanting the current language, which permits, but does not require, such disclosure. Dick Shick Honesty in Campus Justice Act, H.R. 128, 110th Cong. § 2 (2007) (unsuccessful as H.R. 81, 109th Cong. (2005)).
165. USA PATRIOT Act of 2001, Pub. L. No. 107-56, § 507, 115 Stat. 272, 367-68 (codified as amended at 20 U.S.C. § 1232g(j)(l) (Supp. V 2005)).
166. No Child Left Behind Act of 2001, Pub. L. No. 107-110, § 9528, 115 Stat. 1425, 1983 (2002) (codified as amended at 20 U.S.C. § 7908).
167. USA PATRIOT Act § 507 (codified as amended at 20 U.S.C. § 1232g(j)).
168. 20 U.S.C. § 1232g(b)(2)(B) (2000).
169. Id. § 1232g(b)(l)(J).
170. Recently promulgated regulations track the statutory language and do not appear to add new substance. Family Education Rights and Privacy, 73 Fed. Reg. 74, 806, 74, 852 (Dec. 9, 2008) (to be codified at 34 C.F.R. § 99.31(a)(9)).
171. Normally, the application to the court for the subpoena will be by the U.S. Attorney General's Office, but the Attorney General's Office does not have the power to access student records on its own; a court-issued subpoena must be obtained. The statute provides that some other federal employees may apply for confidential terrorism-investigation-related subpoenas. The section specifically states that an application may be filed by "the Attorney General (or any Federal officer or employee, in a position not lower than an Assistant Attorney General, designated by the Attorney General)." Id. § 1232g(j)(l).
172. Id. § 1232g(j)(3).
173. Id. § 1232g(j)(4).
174. Id.. § 1232g(b)(4)(A) (2000).
175. Id.
176. 34 C.F.R. § 99.32(d)(5) (2007) excludes from FERPA access logs: A party seeking or receiving the records as directed by a Federal grand jury or other law enforcement subpoena and the issuing court or other issuing agency has ordered that the existence or the contents of the subpoena or the information furnished in response to the subpoena not be disclosed. Id.
177. 20 U.S.C. § 1232g(j)(2)(A) (Supp. V 2005).
178. Id. § 1232g(j)(l)(A).
179. In the case of general FERPA subpoenas, the family of the student whose records were subpoenaed could also go to court.
180. See infra notes 201-02 and accompanying text.
181. There are media reports of libraries applying to courts to quash or modify USA PATRIOT Act subpoenas of library records, with some success. See, e.g., Karen Dorn Steele, USA Patriot Act Casts Doubt on What We Once Took for Granted, SPOKESMAN REV. (Spokane, Wash.), Sept. 10, 2002, at Al (reporting that the King County, Washington, Library successfully asked a court to quash an FBI subpoena of all its information on a terrorism suspect).
182. No Child Left Behind Act of 2001, Pub. L. No. 107-110, § 9528, 115 Stat. 1425, 1983 (2002) (codified as amended at 20 U.S.C. § 7908(a)).
183. 20 U.S.C. § 1232g(a)(5)(A) - (B) (2000). Thus, for example, a school could choose to release an honor roll or dean's list (of non-objecting students' names) to the local newspaper if it followed the above-described procedure for designating student honors and awards as directory information.
184. 20 U.S.C. § 7908(a)(lH2) (Supp. V 2005); 10 U.S.C. § 503(c) (Supp. V 2005);
185. see generally Kate Dittmeier Holm, No Child Left Behind and Military Recruitment in High Schools: When Privacy Rights Trump a Legitimate Government Interest, 36 J. L. & EDUC. 581 (2007) (explaining how NCLB increases the level of access military recruiters have to high school students' personal information);
186. Lila A. Hollman, Note, Children's Rights and Military Recruitment on High School Campuses, 13 U.C. DAVIS J. INT'L L. & POL'Y 217 (2007) (arguing current U.S. law violates international law limiting military recruitment of minors).
187. 20 U.S.C. § 1232g(b)(l)(A) (2000).
188. Id. § 1232g(b)(l)(B).
189. See 34 C.F.R. § 99.31 (b) (2007).
190. 20 U.S.C. § 7908(a)(2) (Supp. V 2005); 10 U.S.C. § 503(c)(1)(B) (Supp. V 2005).
191. The safe approach would appear to be for schools, in their annual FERPA notifications, to inform families of the school's obligations with respect to military recruiters. See 20 U.S.C. § 1232h(c)(2)(A). Schools could give the families a chance to object either generally to releasing directory information to all persons or specifically to release of information to military recruiters.
192. 20 U.S.C. § 1232h (2000 & Supp. V 2005).
193. See Daggett, Student Privacy, supra note 27, at 55-63 (2008) [hereinafter Daggett, Student Privacy] for an overview of the PPRA.
194. No Child Left Behind Act of 2001, Pub. L. No. 107-110, § 1061, 115 Stat. 1425, 2083 (2002).
195. See Daggett, Student Privacy, supra note 27, at 81-87, for an analysis of NCLB's amendment of the PPRA.
196. The new amendments do not apply to higher education and thus would not limit colleges' collection and sharing of student information for commercial purposes. See 20 U.S.C. § 1232h(c)(6)(C) (Supp. V 2005).
197. Id. § 1232h(c)(l)(E).
198. Id. § 1232h(c)(l)(F).
199. See Daggett, Student Privacy, supra note 27, at 101.
200. These information-gathering requirements do not apply to information gathered for "the exclusive purpose of developing, evaluating, or providing educational products or services for . . . students, " such as college recruitment, instructional materials, and student fundraising activities. 20 U.S.C. § 1232h(c)(4)(A).
201. The PPRA is explicitly not superseded by FERPA. Id. § 1232h(c)(5)(A)(i).
202. 20 U.S.C. §§ 1232h(c)(l)(A), (2)(A) - (B).
203. See Daggett, Student Privacy, supra note 27, at 105.
204. 20 U.S.C. § 1232g(b)(l)(B).
205. Safe and Drug Free Schools and Communities Act of 1994, Pub. L. No. 107-110, §§ 4001-55, 115 Stat. 1425, 1734-65 (amending 20 U.S.C. §§ 7101-65).
206. 20 U.S.C. at § 7115(b)(2)(E)(xvi) (Supp. V 2005).
207. Id. § 7165(b).
208. 536 U.S. 273, 276 (2002).
209. Id. at 299 (Stevens, J., dissenting).
210. See supra Part III.A.2.
211. Owasso Indep. Sch. Dist. No. I-011 v. Falvo, 534 U.S. 426, 434-35 (2002).
212. See supra Part III. A.2.
213. See 20 U.S.C. § 1400 (2000).
214. 34 C.F.R. §§ 300.1-304.31 (2007).
215. See Huefner & Daggett, FERPA Update, supra note 3, at 487-88;
216. see also Daggett, Bucking Up Buckley II, supra note 3, at 644-48.
217. For example, retention of records sufficient to document compliance (e.g., individualized education programs, or IEPs) is required for five years. FERPA does not contain general records retention requirements. Cf. J.P. v. W. Clark Cmty. Sch., 230 F. Supp. 2d 910, 916, 949 (S.D. Ind. 2002) (recognizing that a teacher's destruction of personal notes concerning an autistic student did not violate FERPA absent a showing that the school had a school-wide policy of destroying such documents).
218. See 20 U.S.C. § 1417(c) (requiring the protection of education records in accordance with FERPA).
219. Individuals with Disabilities Education Improvement Act of 2004, Pub. L. No. 108-446, 118 Stat. 2647 (codified as amended at 20 U.S.C. § 1400 (Supp. V 2005)).
220. Assistance to States for the Education of Children with Disabilities, 71 Fed. Reg. 46, 540 (Aug. 14, 2006) (amending 34 C.F.R. §§ 300-01).
221. See supra Part III.B. 1.
222. 20 U.S.C. § 1401(23) (Supp. V 2005).
223. 20 U.S.C. § 1401(19) (2000).
224. 34 C.F.R. § 300.30(a)(4) (2007).
225. IDEIA regulations add details concerning covered foster parents, guardians, and court decrees identifying "parents." The regulations also clarify that biological and adoptive parents attempting to act as parents are presumed to be the parent when other persons (such as foster parents, stepparents, or other relatives) also qualify as IDEA parents. Id. § 300.30(b).
226. In some contrast, FERPA regulations include as parents persons "acting as . . . parent[s] in the absence of a parent or a guardian" but is silent as to foster parents. Id. § 99.3.
227. Id. § 300.622.
228. For general education students, FERPA permits such sharing after notice to the parents. 20 U.S.C. § 1232g(b)(l)(B).
229. Improving the Academic Achievement of the Disadvantaged, 72 Fed. Reg. 17, 748, 17, 763-64 (Apr. 9, 2007) (amending 34 C.F.R. § 200.6).
230. Gonzaga Univ. v. Doe, 536 U.S. 273, 290 (2002).
231. See, e.g., CM. v. Bd. of Educ. of Union County Reg'l High Sch. Dist, 128 F. App'x 876, 880 (3d Cir. 2005) (determining that if the plaintiff had not been provided access to certain information in her school records, injunctive relief under IDEA may be appropriate although the plaintiff had graduated);
232. J.P.E.H. v. Hooksett Sch. Dist., No. 07-CV-276-SM, 2007 WL 4893334, at *4-7 (D.N.H. Dec. 18, 2007) (holding that claims by a parent of a disabled student that the school improperly shared information about her child may proceed as a violation of IDEA records confidentiality, but dismissing parent's FERPA claims);
233. cf. Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186, 194 (2d Cir. 2005) (holding that a failure to provide a parent with class profiles that the school district has not yet created does not violate IDEA);
234. K.C. v. Fulton County Sch. Dist., No. I:03-CV-3501-TWT, 2006 WL 1868348, at *9-11 (N.D. Ga. June 30, 2006) (alleging that the school denied parents access to their child's records; the court found that this was a very limited denial of access which did not limit the parents' ability to participate in their child's education and therefore did not violate IDEA);
235. Combier v. Biegelson, No. 03 CV 10304 (GBD), 2005 WL 477628, *1, *4-5 (S.D.N.Y. Feb. 28, 2005) (finding that an IDEA parent lacked standing to claim a FERPA violation resulting from a school's disclosure to her of records that contained information about other students), aff'dsub nom. Combier-Kapel v. Biegelson, 242 F. App'x 714 (2d Cir. 2007).
236. 20 U.S.C. §§ 1415(f), (i) (Supp. V 2005).
237. Weixel v. Bd. of Educ. of City of N.Y., 287 F.3d 138, 142 (2d Cir. 2002).
238. Id. at 143, 151.
239. Id. 151.
240. Id. at 151-52.
241. Cudjoe v. Indep. Sch. Dist. No. 12, 297 F.3d 1058, 1060 & n.l, 1061 (10th Cir. 2002).
242. Id. at 1061, 1063.
243. Id. at 1062-63.
244. Id. at 1068.
245. Taylor v. Vt. Dep't of Educ, 313 F.3d 768, 786 (2d Cir. 2002).
246. Id. at 796.
247. Like the IDEA, the ESEA/NCLB is one of the major federal education funding statutes that triggers an obligation to comply with FERPA.
248. See supra Part III.B.1.c.
249. These rules concerning students' personal information used or collected for sales or marketing do not apply in a number of instances: to information used or collected for "postsecondary education" or "military recruitment, " for "[b]ook clubs, magazines, and programs providing access to low-cost literary products, " for "[c]urriculum and instructional materials, " for "[t]ests and assessments, " for student fundraising efforts, or for "[s]tudent recognition programs." 20 U.S.C. § 1232h(c)(4)(A) (Supp. V 2005).
250. Id. § 1232h(c)(5)(A)(I).
251. See infra Part IV.A.4.
252. See Daggett, Student Privacy, supra note 27, at 56.
253. For example, Washington law forbids schools from releasing mailing lists for commercial purposes. WASH. REV. CODE ANN. § 42.17.260(9) (West 2006).
254. This proposal was made in an earlier work by the author. See Daggett, Student Privacy, supra note 27, at 104-07.
255. FERPA should also be amended to prohibit persons who receive directory information from redisclosing that information for commercial use. For example, a nonprofit entity offering tutoring services receiving student directory information should not be able to in turn disclose the information to a credit card company. Existing FERPA nondisclosure language forbidding redisclosure of student records does not apply to redisclosure of directory information. See 20 U.S.C. §1232g(b)(4)(B) (2000); 34 C.F.R. § 99.33 (2007).
256. Finally, any exceptions to a ban on disclosure of student directory information for commercial use should be very limited. The PPRA's list of permissible "educational" marketing activities is too broad-seemingly condoning, for example, a school to disclose student information to for-profit test preparation and tutoring companies, and the seller of class rings. While schools might agree to send such companies' brochures home with students, providing these entities mailing lists with student names and addresses is unnecessary. Along these lines, any exceptions should be limited to nonprofit entities. Another commentator has also suggested tightening up FERPA's directory information provision. See Susan P. Stuart, Lex-Praxis of Education Informational Privacy for Public Schoolchildren, 84 NEB. L. REV. 1158, 1211-12 (2006) (proposing that directory information be defined more narrowly, with release limited to educational purposes, and that consent be required for any disclosure for commercial purposes).
257. Stuart criticizes FERPA's identical treatment of student information gathered for educational as compared with other governmental purposes, because such treatment ultimately allows disclosure of student information for commercial purposes. Id. at 1170-71.
258. See VA. TECH REVIEW PANEL, MASS SHOOTINGS AT VIRGINIA TECH 24-29 (2007), available at http://www.govemor.virginia.gov/TempContent/ techPanelReport-docs/FullReport. pdf (providing detailed timeline of shootings).
259. See id. at 31-53 (providing twenty-plus page mental health history of the shooter).
260. See id. at 42-45.
261. In fact, from a student privacy perspective, one wonders why the English professor and other Virginia Tech employees, as well as the authors of the investigative report, were publicly sharing details of the student's discipline and health records as well as his academic assignments.
262. Id. at 68.
263. See Letter from Margaret Spellings, Secretary of Education, to school officials (Oct. 30, 2007), http://www.ed.gov/print/policy/gen/guid/ secletter/071030.html [hereinafter Letter from Margaret Spellings].
264. Id.
265. This office and its actions are discussed in Part III.C, infra.
266. See, e.g., Disclosure of Information from Education Records to Parents of Postsecondary Students, http://www.ed.gov/print/policy/gen/guid/fpco/ hottopics/ht-parents-post secstudents.html; Letter from Margaret Spellings, supra note 181.
267. The brochures are available at http://www.ed.gov/policy/gen/guid/fpco/ ferpa/safe schools/index.html.
268. The prior FERPA regulation on sharing in emergencies explicitly provided that it was to be "strictly construed." 34 C.F.R. § 99.36(c) (2007).
269. The new FERPA regulation removes the "strictly construed" language and substitutes a standard of an "articulable and significant threat" under the "totality of the circumstances, " and further provides that FPCO will defer to a school's judgment applying this standard whenever that judgment is supported by a rational basis. Family Educational Rights and Privacy, 73 Fed. Reg. 74,806, 74,854 (Dec. 9, 2008) (to be codified at 34 C.F.R. § 99.36(c)).
270. Mary Beth Marklein, 'An Idea Whose Time Has Come'?; Schools Increasingly Subjecting Applicants to Background Checks, USA TODAY, Apr. 18, 2007, at D7.
271. About the Family Policy Compliance Office (FPCO), http://www.ed.gov/ policy/gen/ guid/fbco/index.html.
272. E-mail from Ellen Campbell, FPCO, to author (Nov. 21, 2002) (on file with author).
273. Back in the days when judicial recourse was available for FERPA claims, one court suggested in dicta that FERPA court claimants must first exhaust the FPCO administrative complaint process. See Mele v. Travers, 741 N.Y.S.2d 319, 321 n.2 (N.Y. App. Div. 2002).
274. Model policies and letters on topics of interest are available on the FPCO's website, http://www.ed.gov/policy/gen/guid/fpco/index.html. See, e.g., U.S. DEP'T OF EDUC., FPCO GUIDELINES: DISCLOSURE OF EDUCATION RECORDS CONCERNING REGISTERED SEX OFFENDERS (2002), available at http://www.ed.gov/policy/gen/guid/fpco/pdf/ht102402.pdf;
275. Letter from Rod Paige, Secretary of Education, and Donald H. Rumsfeld, Secretary of Defense, to colleagues (Oct. 9, 2002), available at http://www.ed.gov/policy/gen/guid/fpco/pdf/htterrorism.pdf;
276. Letter from LeRoy S. Rooker, Director, FPCO, to colleagues (Apr. 12, 2002), available at http://www.ed.gov/ policy/gen/guid/fpco/pdf/ht 100902.pdf [hereinafter Letter from LeRoy S. Rooker].
277. 34 C.F.R. § 99.30(d) (2007);
278. Family Educational Rights and Privacy Act, 69 Fed. Reg. 21,670 (Apr. 21, 2004).
279. 34 C.F.R. § 99.30(d)(1). Use of the electronic consent standards for student loan transactions is one example of successful implementation of these requirements. See Family Educational Rights and Privacy Act, 69 Fed. Reg. at 21,670.
280. Unified Agenda of Federal Regulatory and Deregulatory Actions, 72 Fed. Reg. 22,472 (Apr. 30, 2007) (to be codified at 34 C.F.R. pt. 99).
281. See Family Educational Rights and Privacy Act, 65 Fed. Reg. 41,852 (July 6, 2000).
282. Family Educational Rights and Privacy, 73 Fed. Reg. 74, 806 (Dec. 9, 2008) (to be codified at 34 C.F.R. pt. 99). To the (small) extent the proposed regulations do concern an issue raised in this Article, it is so noted.
283. For an overview of such requests and suggestions for dealing with subpoenas of and law enforcement requests for student records which is designed for nonlawyer school officials, see STEVEN MCDONALD & ANDREA NIXON, GUIDELINES FOR RESPONDING TO COMPULSORY LEGAL REQUESTS FOR INFORMATION (2007), https://wiki.internet2.edu/confluence/display/ secguide/Protocol+for+Law+Enforcement+Requests.
284. For general subpoenas, FERPA requires schools to make a "reasonable effort" to provide notice to parents/adult students in advance of compliance, in order to afford an opportunity to ask a court to quash or modify the subpoena. 20 U.S.C. § 1232g(b)(2)(B) (2000); 34 C.F.R. § 99.31(a)(9)(i)-(ii) (providing that advance notice is given "so that the parent or eligible student may seek protective action").
285. For good cause, subpoenas or court orders issued by federal courts or grand juries for law enforcement or anti-terrorism purposes may require the school to comply without disclosing the issuance of the subpoena to the parent/adult student. 20 U.S.C. § 1232g(b)(l)(J) (federal law enforcement subpoenas); id. § 1232g(j) (Supp. V 2005) (ex parte court orders to investigate and prosecute terrorism). Recently promulgated regulations clarify that when a third party's records provided by a school pursuant to FERPA are subpoenaed, the third party would bear the obligation of providing parent notice before complying. Family Education Rights and Privacy, 73 Fed. Reg. 74,806, 74, 853 (Dec. 9, 2008) (to be codified at 34 C.F.R. § 99.33(b)(2)).
286. For discussions of FERPA's approach to subpoenas generally, as well as earlier reported decisions, see Daggett, Bucking Up Buckley I, supra note 1, at 634-35;
287. Huefner & Daggett, FERPA Update, supra note 3, at 480-81.
288. See, e.g., Garza v. Scott & White Mem'l Hosp., 234 F.R.D. 617, 624 (W.D. Tex. 2005) ("FERPA does not create an evidentiary privilege . . . . ").
289. However, for subpoenas other than those for law enforcement purposes, the advance notice requirement, and its purpose of providing families with an opportunity to quash or modify subpoenas does indicate an intent to provide some protection of student information from the subpoena power. See Letter from LeRoy S. Rooker, supra note 191.
290. Rios v. Read, 73 F.R.D. 589, 592, 598-99 (E.D.N.Y. 1977).
291. But see DeFeo v. McAboy, 260 F. Supp. 2d 790, 792, 795 (E.D. Mo. 2003) (noting FERPA records generally are not exempt from subpoena; ordering disclosure of discipline and law enforcement FERPA non-records without any balancing of interests as long as both the parents and student are notified);
292. id. at 793 (also holding, post-Gonzaga, that FERPA violations are actionable under § 1983); Orefice v. Secondino, No. CV040486287S, 2006 WL 1102714, at *1 (Conn. Super. Ct. Apr. 7, 2006) (refusing to quash subpoena of school records without balancing interests, apparently not asked to do so). Families notified of a subpoena of their child's student records who consult a knowledgeable attorney can be informed about the in camera review available from courts, the balancing test the court can be asked to perform and the real possibility that a court will order the subpoena quashed or modified. However, parents who receive a letter from a school informing them of a subpoena of their records are unlikely to mention any of this, and one wonders how many parents assume they have no recourse against a subpoena.
293. One can only imagine the number of discovery requests for student records that never made it to court, or were decided by a court without a published opinion.
294. Adams v. Rizzo, No. 04-8469, 2006 WL 3298303, at *2 (N.Y. Sup. Ct. Nov. 13, 2006) (holding in a lead-based paint exposure case that IQ and other educational records of a mother who had indicated that she had a learning disability, which might provide another causative theory of the children's problems, were discoverable, and this theory was the basis for good faith deposition questions; also rejecting existence of educational records privilege); Bunch v. Artz, 71 Va. Cir. 358, 366 (Cir. Ct. 2006) (holding, in lead paint exposure case, that defendants could discover mother's education records).
295. But see Ward v. County of Oneida, 797 N.Y.S.2d 214, 215-16 (App. Div. 2005) (holding, in another lead paint exposure personal injury case, that parents' educational records were confidential under FERPA and protected from discovery).
296. In several cases, courts have found good cause for expedited discovery of these subpoenas, provided the university and students have an opportunity to move to quash the subpoena. See, e.g., Arista Records LLC v. Does 1-4, No. I107-cv-I115, 2007 WL 4178641, at *l-2 (W.D. Mich. Nov. 20, 2007) (Michigan State University as internet service provider);
297. Interscope Records v. Does 1-14, Civil Action No. 5:07-4107-RDR, 2007 WL 2900210, at *2 (D. Kan. Oct. 1, 2007) (University of Kansas as internet service provider); LaFace Records, LLC v. Does 1-5, No. 2:07-cv-187, 2007 WL 2867351, at *l-2 (W.D. Mich. Sept. 27, 2007) (Northern Michigan University as internet service provider; summarizing other opinions with varied results).
298. In one case, after the court permitted expedited discovery for these subpoenas from the University of Tennessee at Knoxville as internet service provider, a student filed a motion to quash on FERPA grounds. Virgin Records Am., Inc. v. Does 1-33, No. 3:07-CV-235, 2007 WL 3145838, at *1 (E.D. Tenn. Oct. 24, 2007).
299. The court denied that motion, reasoning that most of the information sought, such as addresses and phone numbers, was "directory" under FERPA and thus nonconsensual disclosure was permitted absent filing an objection with the school, which had not been done in this case. Id. at *2-3.
300. The court also found that the student's internet address was not a FERPA record because it was not listed as such in the University's records policy. Id. This analysis ignores that the name and addresses were sought to identify the user who had downloaded music from a specific IP address at a specific time, rather than a request for directory information about an identified user. Under this reasoning, a request for the name and address of a student identified as conducting any other activity at school, such as making a 4.0 GPA, seen fighting, or plagiarizing a paper, would not be protected by FERPA. Moreover, a school's policy cannot, of course, limit the records that are protected by FERPA. For another case that concludes the student's information is directory information, and not an invasion of privacy, see Warner Bros. Records, Inc. v. Does 1-14, No. 8:07-CV-625-T-24TGW, 2007 WL 4218983, at *2 (M.D. Fla. Nov. 29, 2007).
301. The same result, but with a somewhat better analysis, is found at Warner Bros. Records, Inc. v. Does 1-6, 527 F. Supp. 2d 1, 2-3 (D.D.C. 2007) (enforcing subpoena against Georgetown University as internet service provider because subpoenaed information is relevant and "crucial to the prosecution of plaintiffs' claims, " and requiring advance notice for subpoenaed students with an opportunity for both Georgetown and the students to move to quash). 206. See, e.g., People v. Bachofer, No. 03CA1311, 2008 WL 192268, at *2-5 (Colo. Ct. App. Jan. 24, 2008) (unsuccessful appeal by thirty-one-year-old defendant who engaged in standoff with police and convicted of, among other charges, false imprisonment of his fifteen-year-old girlfriend during the standoff the defendant claimed to have been consensual). The Bachofer trial court reviewed the subpoenaed school records of the girlfriend in camera and appropriately quashed the subpoena. Id. at *4-5.
302. The court concluded that a subpoena is not a law-enforcement subpoena under FERPA merely because it is issued by a party to a criminal case. Id. at *3.
303. In performing the balancing test, the appellate court also held that the trial court erred in looking for exculpatory material only about the standoff rather than exculpatory material concerning the girlfriend/witness's credibility generally; but after performing its own in camera review, the appellate court found no noncumulative exculpatory material and thus held the error to be harmless. Id. at *4-5.
304. See also May v. Dir., Civil Action No. 6:06cv326, 2007 WL 708580, at *24-25 (E.D. Tex. Mar. 5, 2007) (holding proper a denial of access to child rape victim's school records in an attempt to show a history of misconduct and prior instances of untruthfulness after an in camera review revealed nothing usable for impeachment).
305. United States v. Hunter, 13 F. Supp. 2d 586, 594 (D. Vt. 1998) (reviewing government subpoena of criminal defendant's undergraduate records in connection with his notice of intent to claim ADD; finding records relevant if ADD actually claimed, but maintaining possession under seal and available to government only if ADD claim actually made).
306. Where the school and the student are themselves adverse parties, a separate FERPA regulation provides for nonconsensual disclosure to the court of the student's relevant records. See 34 C.F.R § 99.31(a)(9) (2007) (also noting that the parent may ask the court to seal the records); see also Huefner & Daggett, FERPA Update, supra note 3, at 481-82 (describing the disclosure regulation involved in school-student litigation).
307. See, e.g., Gaumond v. Trinity Repertory Co., 909 A.2d 512, 515-19 (R.I. 2006) (concerning claim by special education student for injury on field trip to defendant theater, where report prepared by school nurse that was redacted at student's request under IDEA records provisions would be made available to defendant; rejecting existence of "school-disabled student privilege"); see also Catrone v. Miles, 160 P.3d 1204, 1207-08, 1210, 1213-16 (Ariz. Ct. App. 2007) (in medical malpractice case, defendants claimed plaintiffs condition was genetic and not the result of negligence, and sought sibling's special education records in support of this theory; court properly ordered partial production of such records after in camera review and balancing);
308. Orefice v. Secondino, No. CV040486287S, 2006 WL 1102714, at *2 (Conn. Super. Ct. Apr. 7, 2006) (claim for damages for emotional distress puts mental state in issue).
309. Anonymous v. High Sch. for Envtl. Studies, 820 N.Y.S.2d 573, 575-76 (App. Div. 2006) (finding, in claim by student allegedly raped by teacher against school for negligent hiring and supervision, records of teacher's sexual behavior with the plaintiff and other students was not protected from discovery).
310. Cf. Baker v. Mitchell-Waters, 826 N.E.2d 894, 899-900 (Ohio Ct. App. 2005) (permitting discovery of records of other student complaints with names redacted where student claimed teacher abuse).
311. See, e.g., Loch v. Bd. of Educ. of Edwardsville Cmty. Sch. Dist. #7, Civil No. 06-017-MJR, 2008 WL 79022, at *2 (S.D. Ill. Jan. 7, 2008) (affirming magistrate's rulings denying discovery of other students' names and warning the pro se plaintiffs that continuing to raise the issue may result in sanctions under Fed. R. Civ. P. 11);
312. Loch v. Bd. of Educ. of Edwardsville Cmty. Sch. Dist. #7, Civil No. 06-017-MJR, 2007 WL 3037287, at *1 (S.D. Ill. Oct. 17, 2007) (holding, in student challenge to school's denial of her eligibility for special education, subpoenas of other students' records quashed); Loch v. Bd. of Educ. of Edwardsville Cmty. Sch. Dist. #7, Civil No. 06-017-MJR, 2007 WL 3037288, at *1 (S.D. Ill. Oct. 17, 2007) (in another ruling in the same case upholding school's refusal to provide information about other named students in answer to interrogatories; school provided information requested but without student names);
313. E.W. v. Moody, No. C06-5253 FDB, 2007 WL 445962, at *l-2 (W.D. Wash. Feb. 7, 2007) (in a § 1983 claim by a student alleging inappropriate sexual contact by the defendant teacher, and asserting that the teacher had behaved similarly with other students, the student's request for names of the teacher's other students was protected by FERPA).
314. See, e.g., DeFeo v. McAboy, 260 F. Supp. 2d 790, 795 (E.D. Mo. 2003) (ordering disclosure of discipline and law enforcement FERPA non-records of allegedly negligent student who drove into plaintiff student);
315. cf. Rose v. Kenyon Coll., 211 F. Supp. 2d 931, 932, 940 (S.D. Ohio 2002) (in a college student's civil suit alleging rape by a fellow student, the plaintiff student sought discovery of the defendant student's education records; the codefendant college moved for a protective order).
316. Santamaria v. Dallas Indep. Sch. Dist, Civil Action No. 3:06-CV-692-L, 2006 WL 1343604, at *2-3 (N.D. Tex. May 16, 2006).
317. See, e.g., Fairchild v. Liberty Indep. Sch. Dist., 466 F. Supp. 2d 817, 820, 827 (E.D. Tex. 2006) (holding, in a claim by a teacher aide asserting retaliatory discharge for reporting wrongdoing by a special education teacher, including problems with medicine administration, that documents concerning emergency medical treatment of special education students are discoverable with both a protective order and an opportunity for parents to object);
318. Humphreys v. Regents of the Univ. of Cal., No. C-04-03808 SI (EDL), 2006 WL 2319593, at *2 (N.D. Cal. Aug. 10, 2006) (redacting information concerning students in an employment discrimination case to protect student privacy).
319. See, e.g., Unincorporated Operating Div. of Ind. Newspapers, Inc. v. Trs. of Ind. Univ., 787 N.E.2d 893, 903-04 (Ind. Ct. App. 2003) (finding that a state public records statute exempts from disclosure records made confidential by federal law). Note, though, that to the extent FERPA defines documents as nonrecords (for example, sole possession notes), a FERPA records exemption in the public records statute seemingly would not protect the documents from disclosure.
320. 34 C.F.R. § 99.61 (2007) (requiring notice to FPCO within forty-five days).
321. Maynard v. Greater Hoyt Sch. Dist. No. 61-4, 876 F. Supp. 1104, 1108 (D.S.D. 1995); South Dakota, 20IDELR 105, 106 (FCPO May 14, 1993).
322. Rim of the World Unified Sch. Dist. v. Superior Court, 129 Cal. Rptr. 2d 11, 14-15 (Ct. App. 2002) ("FERPA preempts [state law] require[ing] the public disclosure of student expulsion records ....").
323. State ex rel. The Miami Student v. Miami Univ., 680 N.E.2d 956, 958-59 (Ohio 1997).
324. United States v. Miami Univ., 294 F.3d 797, 810, 812-13 (6th Cir. 2002).
325. Lindeman v. Kelso Sch. Dist. No. 458, 172 P.3d 329, 330-31 (Wash. 2007).
326. WASH. REV. CODE. ANN. § 42.17.310(l)(a) (West 2006).
327. Lindeman, 172 P.3d at 330.
328. Id. FERPA provides parents with a right of in-person access to student records but does not provide a general right to a copy of their child's records except in unusual circumstances not present in the case. See 34 C.F.R. § 99.10(d) (2007).
329. Lindeman, 172 P.3d at 331.
330. The court ordered the school to pay the parents' attorney's fees, costs and penalties under the public records statute. See id. at 332.
331. Id. at 332.
332. Under FERPA, consent is of course not required for parents to access their own child's records. To the extent that records pertain to more than one student (such as a teacher's grade book), the school must redact the information about other students. See 20 U.S.C. § 1232g(a)(l)(A) (2000); 34 C.F.R. § 99.12(a). It is fairly easy to do this with a grade book; Lindeman illustrates the difficulty of doing so with some electronic records. Is the school expected to pay a technician to blur the faces of all the other students on the bus?
333. Lindeman does not raise the possibility that the videotape was a law-enforcement record excluded from the definition of record under FERPA. This would be the case if the school's security unit set up the videotaping program and did so at least in part for law enforcement purposes. See 34 C.F.R. § 99.8(b)(l)(i).
334. 34 C.F.R. §99.3.
335. MR ex rel. RR v. Lincolnwood Bd. of Educ, Dist. 74, 843 F. Supp. 1236, 1239 (N.D. Ill. 1994);
336. aff'd sub nom. Rheinstrom ex rel. Rheinstrom v. Lincolnwood Bd. of Educ. Dist. 74, 56 F.3d 67 (7th Cir. 1995) (mem.).
337. Along similar lines, a federal appeals court has indicated that a tape recording of the medical school committee hearing and deliberations, which resulted in the plaintiffs academic dismissal, "appearfed]" to be a FERPA record. Lewin v. Cooke, 28 F. App'x 186, 193-95 (4th Cir. 2002) (per curiam) (but finding defendants had qualified immunity because the law on this point was unclear).
338. See, e.g., BRV, Inc. v. Superior Court, 49 Cal. Rptr. 3d 519, 521, 524-27, 530 (Ct. App. 2006) (ordering production, under state public records laws, of investigative report on former school superintendent accused of, among other things, sexual harassment of female students; "pupil records" exception under public records statute limited to institutional records maintained by a central custodian related to private educational interests of students).
339. See Lindeman, 172 P.3d at 332 (ordering the school district to pay attorney fees, costs, and penalties).
340. Fish v. Dallas Indep. Sch. Dist., 170 S.W.3d 226, 228-29 (Tex. App. 2005).
341. Chi. Tribune Co. v. Bd. of Educ. of Chi., 773 N.E.2d 674, 677 (Ill. App. Ct. 2002).
342. Recently promulgated regulations establish standards for when de-identified records may be released. Family Educational Rights and Privacy, 73 Fed. Reg. 74, 806, 74, 852-53 (Dec. 9, 2008) (to be codified at 34 C.F.R. § 99.31(b)).
343. Id. at 679-80.
344. Osborn v. Bd. of Regents of Univ. of Wis. Sys., 647 N.W.2d 158, 160-61 (Wis. 2002).
345. Id. at 161, 171.
346. Id. at 176.
347. Kathy Chu, Schools Give Student Data to Banks, USA TODAY, Oct. 2, 2006, at Al;
348. see also Michelle Singletary, Colleges Are in Cahoots with Credit Card Companies on Campus, BOSTON GLOBE, NOV. 30, 2007, at C4.
349. The website www.truthaboutcredit.org asks colleges not to sell student lists to credit card companies. Truth About Credit, http://www.truthaboutcredit. org/campaign (last visited Dec. 21, 2008). A recent US Public Interest Research Group survey of college students found that sixty-seven percent opposed schools' sharing of student information with credit card companies. See Kathy Chu, Credit Cards Go After College Students, USA TODAY, Mar. 31, 2008, at B6;
350. Kathy Chu, Colleges' Debit-Card Deals Draw Scrutiny, USA Today, Mar. 17, 2008, at Al (describing how schools profit from making student ID cards available as a debit card with a preferred bank; University of Minnesota earns $1 million annually and received a $2 million signing bonus for such an arrangement; some debit cards charge hefty overdraft fees rather than declining purchases on overdrawn accounts).
351. See In re Educ. Research Ctr. of Am., Inc., 135 F.T.C. 578, 580-81 (2003) (final order);
352. In re Am. Student List, LLC, 135 F.T.C. 31, 32-34 (2003) (final order);
353. In re Nat'l Research Ctr. for Coll. and Univ. Admissions, Inc., 135 F.T.C. 13, 14-16 (2003) (proposed consent order).
354. In re Educ. Research Ctr. of Am., Inc., 135 F.T.C. at 580.
355. Id. at 581.
356. Id. at 580.
357. In re Nat'l Research Ctr. for Coll. and Univ. Admissions, Inc., 135 F.T.C. at 15.
358. In re Educ. Research Ctr. of Am., Inc., 135 F.T.C. at 598-600;
359. In re Nat'l Research Ctr. for Coll. and Univ. Admissions, Inc., 135 F.T.C. at 22-23.
360. In re Educ. Research Ctr. of Am., Inc., 135 F.T.C. at 598-99;
361. In re Nat'l Research Ctr. for Coll. and Univ. Admissions, Inc., 135 F.T.C. at 22-23.
362. Marisol Bello, Securing Students ' Data Top Tech Issue, USA TODAY, Mar. 20, 2008, at A3 (noting that a hacker recently obtained records on 10,000 Harvard graduate school applicants, and a sixty-eight percent increase in such incidents in 2007).
363. Recently promulgated regulations attempt to deter identity theft of students by adding items such as biometric records, date and place of birth, and mother's maiden name to the category of "personally identifiable information, " which is treated as confidential. Family Education Rights and Privacy, 73 Fed. Reg. 74, 806, 74, 852 (Dec. 9, 2008) (to be codified at 34 C.F.R. § 99.3(6)).
364. See Parks v. Dep't of Educ., No. CIV. 99-1052-KI, 2000 WL 62291, at *3 (D. Or. Jan. 26, 2000).
365. FERPA permits disclosure of records for audit purposes. 20 U.S.C. §§ 1232g(b)(l)(C), (b)(3), (b)(5) (2000).
366. 20 U.S.C. § 1232g(b)(4)(B); 34 C.F.R. § 99.33 (2007).
367. Cf. United States v. Univ. Hosp., Inc., No. l:05-cv-445, 2006 WL 2612631, at *l-3 (S.D. Ohio July 28, 2006) (reviewing the federal government's allegations that hospital residents were employees rather than students and thus defendant hospital owed employment taxes; the court denied government request for discovery which would have permitted redisclosure to other agencies to enforce laws, in part because of FERPA privacy protections).
368. 5 U.S.C. § 552a (2000).
369. Id. § 552a(d).
370. Id. § 552a(b).
371. See id. §§ 552a(a)(4)-(5).
372. Id. § 552a(b)(7).
373. Id. § 552a(b)(5) (non-identifiable information only may be disclosed under this exception).
374. Id. §§ 552a(a)(7), (b)(3).
375. Id. § 552a(b)(2).
376. Id. § 552a(e)(4).
377. See Department of Education System of Records Notices, http://www.ed.gov/policy/ gen/leg/sorn.html (last visited Dec. 22, 2008).
378. 5 U.S.C. § 552a(g).
379. Privacy Act of 1974; System of Records, 70 Fed. Reg. 29, 486 (May 23, 2005).
380. See, e.g., Complaint at 1-2, Hanson v. Rumsfeld, No. I:06-CV-03118 (S.D.N.Y. Apr. 24, 2006), available at http://www.nyclu.org/files/ hanson-v-rumsfeld-complaint-042406.pdf (stating allegations by high school students that DOD illegally collected and disseminated student information).
381. Privacy Act of 1974; System of Records, 72 Fed. Reg. 952 (Jan. 9, 2007).
382. See id. at 953.
383. Id. 955.
384. Id. at 953.
385. Id. at 953, 955.
386. 10 U.S.C. § 983 (West Supp. 2008).
387. Military Recruiting and Reserve Officer Training Corps Program Access to Institutions of Higher Education, 73 Fed. Reg. 16, 527 (March 28, 2008) (codified at 32 C.F.R. pt. 216).
388. 32 C.F.R. § 216.4(a) (2008).
389. At the higher-education level, these regulations clarify that a student opt-out from the release of her directory information also serves as an opt-out to a request from the military; a separate military opt-out is not required from college students, in contrast to secondary students. Id. § 216.4(b)(5).
390. See Privacy Act of 1974; System of Records, 72 Fed. Reg. 24, 572 (May 3, 2007) (providing that when a DOD student transfers to a non-DOD school, the student's DOD program files will be shared only upon request from the school, and "[o]nly academic and attendance records will be released").
391. See Amit R. Paley, Loan Firms Set to Regain Access to U.S. Student Data, WASH. POST, May 3, 2007, at A7.
392. 34 C.F.R. § 99.31(a)(4) (2007).
393. 34 C.F.R. §§ 668.24(d)(2), (f); 34 C.F.R. § 685.309(a)(2).
394. Kathy Chu, Leery Officials Kick Lenders Out of Student Database, USA TODAY, Apr. 18, 2007, at B1; Lenders Regain Loan Database Access, USA TODAY, May 3, 2007, at B1 (DOE to require lenders to provide list of employees who need access and certification; access to be granted only for authorized purposes).
395. See SEC'Y OF EDUC. COMM'N ON THE FUTURE OF HIGHER EDUC., A TEST OF LEADERSHIP: CHARTING THE FUTURE OF U.S. HIGHER EDUCATION 21 (2006), available at http://www.ed.gov/about/bdscomm/list/hiedfuture/reports/final-report.pdf.
396. Dan Eggen, FBI Seeks Data on Foreign Students, WASH. POST, Dec. 25, 2002, at Al ("The FBI is asking colleges ... to provide the government with personal information about all foreign students and faculty . . . .");
397. Mary Beth Marklein, INS Database Worries Colleges, USA TODAY, Jan. 20, 2003, at 6D (describing an INS database of foreign students, which schools must supply requested information to).
398. Greg Toppo, Education Department Assisted FBI, USA TODAY, Sept. 1, 2006, at 4A (reporting on "Project Strike Back" a joint effort of DOE and FBI to review financial aid records of several hundred students as a counterterrorism measure).
399. See supra Part IV.B.
400. See generally Daggett, Bucking Up Buckley I, supra note 1, at 648-52, 667-70 (describing unsettled issues of the intersection of FERPA with federal substance abuse records laws, case law establishing constitutional rights of minors, the PPRA, state FOIA laws, evidentiary privileges, child abuse reporting laws, and reporting criminal activity and making recommendations to amend FERPA to clarify certain of these issues); Huefner & Daggett, FERPA Update, supra note 3, at 488-90 (discussing interaction between FERPA and various federal and state laws);
401. see also Margaret L. O'Donnell, FERPA: Only a Piece of the Privacy Puzzle, 29 J.C. & U.L. 679, 681-85 (2003).
402. FERPA regulations require schools that believe they cannot comply with both FERPA and a conflicting state or local law to notify the FPCO. 34 C.F.R. § 99.61 (2007). The FPCO may issue an informal opinion, and on occasion has issued joint opinion letters with other federal agencies that enforce the potentially conflicting statutes, but these letters are not binding law, and may not even be given administrative deference by courts. See Christensen v. Harris County, 529 U.S. 576, 587-88 (2000) (interpretation of statute in agency opinion letters is "entitled to respect, " but is not accorded normal judicial deference to agency opinions).
403. 42 U.S.C. §15041 (2000).
404. Disability Rights Wis., Inc. v. Wis. Dep't of Pub. Instruction, 463 F.3d 719, 722, 730 (7th Cir. 2006).
405. This court noted that the P&A had statutory authority to investigate possible abuse and neglect, and attendant access to records. Id. at 726.
406. In the case at hand, the P&A had probable cause to believe there was abuse or neglect, that it was the agency with the most expertise, and was statutorily obligated to keep the records confidential. Id. at 728-29.
407. The Seventh Circuit also found that the P&A's need for the information outweighed any invasion of student privacy, and thus FERPA did not bar release of the records. Id. at 730. FERPA does not include any such balancing test.
408. Conn. Office of Prot. & Advocacy for Persons with Disabilities v. Hartford Bd. of Educ, 464 F.3d 229, 233 (2d Cir. 2006).
409. Id. at 242-43.
410. In that case the federal DOE and HHS had submitted a joint amicus brief indicating that (1) FERPA did not prohibit classroom observation and (2) the federal P&A statutes provided a "limited override" of FERPA consent requirements. Id. at 236. The court suggested access to individual records would require parent consent. Id. at 243-45.
411. Unified Sch. Dist. No. 259 v. Disability Rights Ctr. of Kan., 491 F.3d 1143, 1145-50 (10th Cir. 2007) (reviewing P&A investigation of longstanding program of homebound instruction consisting of one to three hours per week to student with disability requested records of other students receiving homebound instruction; school declined to provide information in the aggregate for students).
412. Disability Law Ctr. of Alaska, Inc. v. Anchorage Sch. Dist., No. 3:07-cv-0131-RRB, 2007 WL 2827532, at *6 (D. Alaska 2007) (citing Wash. Prot, and Advocacy Sys., Inc. v. Evergreen Sch. Dist., No. C03-5062 (W.D. Wash. Apr. 11, 2003), ajf'd, 71 F. App'x 654 (9th Cir. 2003) (mem.)).
413. For earlier commentary and review of cases and administrative opinions on this issue, see Daggett, Bucking Up Buckley I, supra note 1, at 627-28.
414. Newport-Mesa Unified Sch. Dist. v. Cal. Dep't of Educ, 371 F. Supp. 2d 1170, 1179 (CD. Cal. 2005).
415. 20 U.S.C. § 1232g(a)(l)(A) (2000); 34 C.F.R. § 99.10(a) (2007).
416. Newport-Mesa, 371 F. Supp. 2d at 1179.
417. Id. at 1174.
418. Id. at 1179. The court also distinguished student access to a test protocol before actually taking the test, citing authority indicating that sharing the test protocol in such situations would not constitute fair use and would violate copyright law. Id. at 1175.
419. Lewin v. Cooke, 28 F. App'x 186, 193 (4th Cir. 2002).
420. See Daggett, Bucking Up Buckley I, supra note 1, at 649.
421. Port Wash. Teachers' Ass'n v. Board of Educ. of the Port Wash. Union Free Sch. Dist., 361 F. Supp. 2d 69, 72-73 (E.D.N.Y. 2005).
422. Id. at 73. The case is criticized in Melissa Prober, Note, Please Don't Tell My Parents: The Validity of School Policies Mandating Parental Notification of a Student's Pregnancy, 71 BROOK. L. REV. 557 (2005).
423. See RESTATEMENT (THIRD) OF TORTS: LIAB. PHYSICAL HARM § 41 (Proposed Final Draft No. I, 2005).
424. Doe v. Ohio St. Univ. Bd. of Regents, No. 2:04CV0307, 2006 WL 2813190, at *1 (S.D. Ohio Sept. 28, 2006).
425. Id. at *10, *12-13.
426. Id. at* 12.
427. Id.
428. Id. at *2-3.
429. Carpenter v. Mass. Inst, of Tech., No. 023660, 2005 WL 1488417, at *1 (Mass. Super. Ct. May 17, 2005).
430. Id. at *3.
431. See id. at *1 (granting plaintiffs motion to compel the student's records compiled during the school's investigation). See generally John S. Gearan, Note, When is it OK to Tattle? The Need to Amend FERPA, 39 SUFFOLK U. L. REV. 1023 (2006) (discussing the lawsuit arising from another MIT student's suicide); Heather E. Moore, Note, University Liability when Students Commit Suicide: Expanding the Scope of the Special Relationship, 40 IND. L. REV. 423, 446-49 (2007) (discussing FERPA and university tort duties as to students who may be suicidal).
432. 20 U.S.C. § 1415(k)(6)(A) (Supp. V 2005).
433. Id. § 1415(k)(6)(B); 34 C.F.R. § 300.529 (2007).
434. Commonwealth v. Nathaniel N., 764 N.E.2d 883, 885 (Mass. App. Ct. 2002).
435. Id.
436. Id. at 888 (noting that the IDEA did not specify when during the criminal process the records were to be shared, and that in fact the student had provided some records to the court).
437. United States v. Bunnell, No. CRIM.02-13-B-S, 2002 WL 981457, at *1 (D. Me. May 10, 2002).
438. Id.
439. Id. at*2.
440. FERPA contains no explicit exception in its nondisclosure provisions regarding the reporting of suspected criminal activity. See Daggett, Bucking Up Buckley I, supra note 1, at 668.
441. Bunnell, 2002 WL 981457, at *2 (noting that the school gave the police access to the recycling bin in its computer facility).
442. 34 C.F.R. §§ 99.3, 99.4 (2007).
443. Mele ex rel. Mele v. Travers, 741 N.Y.S.2d 319, 320-21 & n.2, 322 (App. Div. 2002).
444. The defendant landlord facing a tenant's tort claim involving lead paint exposure to a minor child sought consensual discovery of the child's brother's school records; when plaintiff refused, defendant obtained authorization from the children's estranged, noncustodial parent. Id. at 320.
445. The school district refused access to the records, based in part on the wishes of the custodial parent, which was upheld by the trial court. Id. at 320 & n. 1.
446. The appeals court affirmed, holding that the landlord lacked standing to challenge the school's refusal to turn over records; the appeals court reserved the question of whether the noncustodial parent's FERPA rights were violated. Id. at 321 & n.2, 322.
447. Fuentes v. Bd. of Educ. of City of N.Y., No. 01 CV 1454(FB), 2002 WL 1466421, at *2 (E.D.N.Y. July 10, 2002) (specifically citing FERPA as preserving noncustodial parent rights "absent a binding . .. court order barring access to records" (citing 20 U.S.C. § 1232g (2000))).
448. Cherry v. LeDeoni, No. 99 CV 6860(SJ), 2002 Westlaw 519717, at *1, *4 (E.D.N.Y. Mar. 31, 2002).
449. The school had provided the redacted information only after notifying the custodial parent of the request, pursuant to school policy, and giving her 45 days to get a court order barring access. The redaction had been recommended by the court. Id. at *l-2.
450. Id. at *2.
451. Taylor v. Vt. Dep't of Educ, 313 F.3d 768, 791-92 (2d Cir. 2002).
452. Geehern ex rel. R. v. Bd. of Educ. of the Tuxedo Union Free Sch. Dist., 54 F. App'x 701, 702 (2d Cir. 2002).
453. 20 U.S.C. § 1232g(d) (2000).
454. Id. § 1232g(b)(l)(H).
455. FPCO Frequently Asked Questions, http://www.ed.gov/policy/gen/guid/fpco/ faq.html (last visited Dec. 22, 2008) (citing 34 C.F.R. § 99.31(a)(8) (2007)).
456. Id.
457. John Bacon, University Bans 24 People from Campus, USA TODAY, Apr. 26, 2007, at 3A. Since this report, the university has removed the banned students from its publicly accessible website, but has them listed on a database accessible to faculty, staff, and students. See Univ. N. Colo. Police Dep't, Individuals Banned from Campus, http://www.unco.edu/police/ communications/banned.htm (last visited Dec. 22, 2008); Univ. N. Colo., University Resource for System Access, http://ursa.unco.edu/cp/home/loginf (last visited Dec. 22, 2008).
458. School District Posts Students ' Files Online, SPOKESMAN REV. (Spokane, Wash.), Sept. 21, 2003, at B8 (reporting the disclosure in Vancouver, Washington).
459. Greg Toppo, Who's Watching the Class?, USA TODAY, Aug. 11, 2003, at D1.
460. For recent commentary on school electronic surveillance, see Kevin P. Brady, "Big Brother" is Watching, But Can He Hear, Too?: Legal Issues Surrounding Video Camera Surveillance and Electronic Eavesdropping in Public Schools, 218 EDUC. L. REP. 1 (2007). A January 31, 2007, letter to the FPCO from the National School Boards Association (NSBA) asked for guidance on thirteen questions concerning video images of students. Letter from Lisa E. Soronen, NSBA Staff Attorney, to LeRoy Rooker, Director, Family Policy Compliance Office (Jan. 31, 2007), available at http://www.nsba.org/SecondaryMenu/COSA/Search/AllCOSAdocuments/Letterto FPCOregardingvideoimagesunderFERPA.aspx. As of this publication, there is no published FPCO response.
461. R.M. ex rel. K.M. v. Boyle County Sch., No. 5:06-152-JMH, 2006 WL 2844146, at *1 (E.D. Ky. Oct. 2, 2006).
462. The court denied the plaintiffs motion to strike the meeting minutes from the record. Id. at *2.
463. Zona v. Clark Univ., 436 F. Supp. 2d 287, 289-90 (D. Mass. 2006).
464. Axtell v. Univ. of Tex. at Austin, 69 S.W.3d 261, 263 (Tex. App. 2002).
465. The student athlete sued under both FERPA and a common law negligence tort claim. Id.
466. A state appeals court upheld the dismissal of the complaint, holding that the defendants were immune from the tort claim under the state tort claims act, and noting that the student "concedes that he cannot maintain a cause of action under FERPA against the University." Id. at 264, 267.
467. Dyess v. La. State Univ. Bd. of Supervisors, No. Civ. A. 05-392, 2005 WL 2060915, at *1 (E.D. La. Aug. 19, 2005) (dismissing FERPA and other claims).
468. See Disclosure of Student Info by Coach Violates FERPA, LEGAL ISSUES IN COLL. ATHLETICS, Apr. 2003, at 6 (noting university president "regrets" the "technical" FERPA violation; coach's previous statement that his actions did not violate FERPA to the contrary).
469. Goins v. Rome City Sch. Dist., 811 N.Y.S.2d 520, 520-21 (App. Div. 2006) (dismissing FERPA and other claims).