Personal Privacy in an Information Society. The Family Educational Rights and Privacy Actthe Origins of Ferpa

07/12/1997

The growing importance of records about students and of the record-keeping practices of educational institutions has not gone unnoticed. Litigation and the professional literature have drawn attention in recent years to the misuse of personal information in the placement of minority children in programs for the educationally handicapped.17 Research has highlighted the impact of stigmatization on the educational achievements of children and has pointed to the impact on educational decisions of erroneous or incomplete information about students. Court cases prior to the passage of FERPA in 1974 increasingly recognized that decisions made by schools can result in harm to students and that students and parents must therefore have a right of redress.18

Several studies carried out in the early 1970's documented record-keeping problems in both higher education and elementary and secondary schools. In 1970, the Russell Sage Foundation convened a conference on the Ethical and Legal Aspects of School Record Keeping to clarify principles for the management of elementary and secondary school records. Release of the conference report19 was followed by a second conference on Student Records in Higher Education and a second report.20 The recommendations in these reports helped to crystallize concern about the creation, use, and disclosure of school records.

The stimulus for the passage of FERPA was a 1974 study of the National Council of Citizens in Education (NCCE).21 In this report the NCCE identified the following as the most prevalent abuses in elementary and secondary school record keeping:

  • carte blanche access to school records by school personnel, law enforcement agencies, welfare and health department workers, and Selective Service Board representatives;
  • lack or denial of the right of parents and students to inspect school records, to control what goes into them, and to challenge their contents;
  • failure to obtain permission from parents before collecting information on students and their families (for example, before submitting students to psychiatric or personality tests);
  • serious abuses in the preparation of student records that follow students throughout their educational careers; and
  • failure to inform students and parents when, to whom, and why others are given access to records.

On May 14, 1974, Senator James L. Buckley succeeded in getting a floor amendment to the General Education Provision's Act of 1974 which aimed to correct these problems. The two main provisions of the amendment, which applied to any school that receives Federal funds through the U.S. Office of Education (Department of Health, Education, and Welfare), required procedures to assure students and parents access to those records and restricted disclosure of records to third parties. Although the amendment had not been the subject of Congressional hearings, it was adopted by the conference committee on the General Education Provision's Act later that summer and signed into law on August 21, 1974.22 At the time, few educators were aware of it.

During the weeks after its enactment, however, educational institutions and other interested parties around the country launched a massive letter-writing campaign to members of Congress. At this point, the Senate and House Education Subcommittees and the Department of Health, Education, and Welfare Legislative Office took the lead in working out a compromise measure, which Senator Buckley sponsored. Representatives of educational institutions and of parent and student groups contributed to the drafting of the revision, which became known as the Family Educational Rights and Privacy Act. It was passed by both Houses of Congress and signed into law in December 1974.23

The process by which FERPA was enacted had a significant impact on its subsequent implementation. Several factors are important in understanding this impact. First, professional educators were not involved in drafting the original legislation nor even aware of its existence. Although key groups were brought in during the redrafting, their role could only be responsive, not creative, and was, in the main, defensive. Because there had been no national debate or public hearings on the measure, and only a minimum of congressional debate, neither the affected parties (i.e., educational institutions, parents, and students) nor the Department of Health, Education, and Welfare, which had to develop regulations to implement the Act, received much guidance on the manner in which the Act should be interpreted.

Second, FERPA was primarily designed to address documented problems in elementary and secondary schools, but it was made applicable to higher education on the too simple assumption that the problems in both areas are similar and thus that the same principles would apply equally well in both places. Representatives of higher education who participated in drafting the compromise amendment considered the final version to be a vast improvement over the original measure. Nevertheless, they continued to be convinced that FERPA addressed a set of record-keeping problems that were different from those that arise in higher education and thus that the requirements of FERPA would create substantial burdens without benefiting students.