In a recent interview with Heather Abbott, Law School Registrar at Yale University, Steven J. McDonald, the recently retired General Counsel of Rhode Island School of Design, shares what he thinks are two areas of FERPA that most people misunderstand:
FERPA applies only to “educational” – which is to say, core academic – records. For a very brief time at the very beginning of FERPA, there was some truth to that, but Congress, recognizing that the scope of what it had initially enacted was far narrower than it had intended, retroactively amended the statute to encompass essentially all institutional records that contain personally identifiable information about our students (with just a handful of specific, carved-out exceptions), regardless of whether they are academic in nature. That actually makes our job a lot easier, as we don’t have to spend time parsing out the “academicness” of any particular record and can simply focus instead on whether any of the exceptions to disclosure apply.
FERPA is incredibly restrictive, and violations can lead to catastrophic consequences, so it’s best to “just say no.” To be sure, FERPA’s rules governing disclosure can seem confusing and complex, in large part simply because there are so many exceptions. But the reason they exist is actually to make the statute flexible so that we almost always may disclose student records when we really need to do so, and we face virtually no consequences for good-faith, innocent mistakes. If you’re not sure whether you may disclose a particular student record in a particular situation, the better response is to consult your campus FERPA experts – your registrar and your legal counsel.
These, he said, “underlie many of the other” aspects of the law that can be misunderstood.
Throughout the interview, which appeared in the summer issue of College & University Journal, McDonald discusses how he ended up in higher education after receiving his J.D. and his work educating lawyers about FERPA for the National Association of College and University Attorneys (NACUA). In addition, he shares guidance for registrars working with vendors and vendor contracts.
Offering advice for registrars who want to build a partnership with General Counsel, he said: If your lawyers haven’t already approached you, approach them! If they haven’t, it’s probably just because they’ve been busy with crises, and FERPA rarely is one. He added: With a heads up, we can help you to think through and manage any legal issues and risks so as to best achieve your goals…And having an established relationship will always help if a crisis ever should arise.”
The interview was part of C&U’s 50 Years of FERPA series, celebrating the anniversary of The Family Education Rights and Privacy Act of 1974, a federal law pertaining to the release of and access to student education records.
Other articles in the summer issue include:
Features
- Factors Affecting Transfer Commuter Student Persistence: A Literature Review by Tyler G. Guenette
- Factors Influencing On-Time Degree Completion in a Two-Year, Graduate Professional Program by Jena Black
- Interview with Liz Cheron by Tiffani Robertson
- Interview with Don Hossler by Luke Schultheis
50 Years of FERPA
Commentary
- Best Practices in the Role of the Registrar by Susan Hamilton
- Champions for Access: How Ten Michigan Public Universities United to Assure Admissions by Shane Lewis, Mia Murphy, and Joe Vainner
- Inclusive Opportunities in Medical School Admissions Can Benefit Medically Underserved Areas by Barry Pollack
- Aligning AACRAO Competencies with CliftonStrengths® for Professional Development by Adrienne Fraaza
The AACRAO Review
- Cancel Wars: How Universities Can Foster Free Speech, Promote Inclusion, and Renew Democracy, reviewed by Mark E. Butt
- Direct Admissions Report reviewed by Jonathan Lord
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