Personal Privacy in an Information Society. Protections for Fairness


Fairness is a major objective of FERPA. The basic tools for achieving it are the right of a parent or student to inspect, review, and challenge the contents of his record; and the obligation levied on the institution to provide a hearing, to correct or delete the challenged portion of a record, or to incorporate into the record a parent or student's explanatory statement. Again, however, these tools are not enough to achieve the Commission's objectives.

Particularly in elementary and secondary schools, the record-keeping practices that lead to unfairness also weaken the effectiveness of access and correction rights as protections against unfairness. Identifying unfair record-keeping practices requires the ability to relate records to decisions. In the educational process, however, parents are often unaware that important decisions are being made about their children. In fact, schooling can be looked upon as a continuous set of decisions, and it is unlikely that an institution could keep parents informed of each and every decision made about their child even if it tried to do so. Moreover, if rights of access and correction are tied to "adverse decisions," as the Commission recommends in other chapters of this report, is difficult to do in education because it is so difficult to define an adverse decision. Is placing a child in a compensatory program, for example, an "adverse" decision?

There are, of course, many decisions about which parents are informed, such as promotion, major disciplinary actions, or placement in particular academic programs. In some of these decisions, the role of records is clear and it is easy to label a certain outcome as negative or positive for the student. There are, however, many more decisions made about students that either parents do not know about, that are not clearly based on easily identified items of information, or whose effect on the child is difficult to assess. Such decisions can be based on so many factors that it is difficult for a parent to assess whether information in a record is inaccurate, misleading, or irrelevant as it relates to the decision. Standing alone, the right to inspect and request correction of a record places the total burden for assuring the reliability of records on the individual who often does not understand the system well enough to use the right effectively.

Particularly at the elementary and secondary level, there are also pressures on a student or his parent not to exercise such rights lest they be stigmatized as troublemakers or malcontents. In any relationship between an individual and an institution that has discretion to grant or deny him a benefit, there is the danger that the individual will be penalized for exercising a record-keeping right, unless the institution has strong incentives, legal or economic, not to retaliate. As far as schools are concerned,

testimony presented to the Commission confirmed that educational institutions do sometimes retaliate, and that a number of parent and student organizations believe that they do so frequently.33 Moreover, as pointed out in the discussion of intrusiveness, access and correction rights for individuals are at best remedial, not preventive, and do not readily lead to systemic improvements. An individual can contribute to improving the quality of information about him in records, but only if he knows what the record-keeping standards of an institution are. FERPA does not address the issue; it neither places an obligation upon educational institutions to establish standards nor requires that parents and students be informed about the record-keeping standards of the institution.

Because elementary and secondary schools treat individuals over time, they engage in substantial problem diagnosis. Hence, like any other treatment institution, they have established dual record systems-the official records kept by the institution and the so-called "desk drawer" notes that individual teachers, administrators, or ancillary personnel keep primarily for their own use. The latter type of record usually contains observations, impressions, questions, or even tentative interpretations and diagnoses. FERPA recognized that student or parent access to such information can be a two-edged sword in that it can deter the keeping of records and knowledge of what is in the records can impede an individual's course of treatment. Therefore, FERPA tried to balance the need for this type of record against the equally compelling argument that access to records by their subjects is an essential component of fairness in record keeping. The FERPA solution was to exempt desk drawer notes from student or parent access provided they are not revealed to any person other than a person substituting for the note taker. Educators have argued that this has reduced the value of such notes and thus has discouraged school personnel from keeping them. Educators argue that desk drawer notes work to the overall benefit of the student, but some parent and student groups contend that the notes of administrators with disciplinary responsibilities have in effect become secret record systems used to support disciplinary decisions.

In higher education, access and correction rights to most records are effective tools because institutions have standards for the content of records and their use. Nonetheless, when standards for the content of records are not clearly established, or when students are not clearly informed of those standards, as is the case with departmental records, the inadequacies of these FERPA requirements are the same as in elementary and secondary school systems. The pressures against the exercise of such rights are even stronger in post-secondary institutions than they are in elementary and secondary schools because the emphasis on professionalism and on the autonomy of faculty members is much stronger. The student is so dependent upon the professional judgments of individual faculty members that he is not likely to risk prejudicing them by asserting his rights.

An equally serious problem in post-secondary education is that FERPA grants no right of access or correction to records regarding admissions. This is the one area in which access and correction rights alone could be important protections. As in admissions, a record is compiled for a single decision of unquestionable importance to the individual. To assure fairness in making admission decisions, an individual needs to be able to challenge the contents of a record and request its correction so that the record will truly reflect facts about himself, his background, and his previous performance. Denying the applicant access to his admissions record and an opportunity to request correction of it leaves a serious breach in his defense against unfairness. This is especially true for a rejected applicant, because a successful applicant can have access to his admission record when he becomes a student, as such records must by law be maintained. for 18 months.

The FERPA provision that permits a student to waive his right of access to letters of recommendation is another loophole in the statute that has special import for post-secondary students. While FERPA recognizes the individual's right to inspect such letters, the waiver provision can have the effect of placing a student under substantial pressure to relinquish his right at a time when he is most vulnerable to pressure. Empirical evidence presented to the Commission indicates that waiving one's right of access to a letter of recommendation has no discernible impact on the content and quality of such letters, although the myth persists that a student's refusal to do so inevitably debases the quality and thus the usefulness of the letter.34 One university proposed barring waivers, but had to withdraw the proposal in the face of student assertions that accepting it would weaken their competitive position for admission to other institutions.35 This is an even greater problem than it might otherwise appear to be by virtue of the fact that there are no content standards for letters of recommendation.

Another major deficiency of FERPA is that it does not aply to testing and data-assembly service organizations. Hence, an applicant has no legal right to inspect and challenge information in their tiles. This is significant because, despite their elaborate quality control procedures, the testing and data-assembly organizations have been known to transmit erroneous information about an individual,36 and to be unable to detect errors that do not occur on a large scale. In addition, these organizations create records without the knowledge of the individual, such as lists of "unacknowledged repeaters,"37 or "weighted" scores for individuals based on information supplied by the client institution. Such secret records or special scores may stigmatize an applicant or student (as when "unacknowledged repeaters" are branded as "cheaters") or subject the individual to an adverse decision (as when an applicant is rejected because his "weighted" score is too low).

Finally, FERPA makes no provision for an individual at any level of schooling to have a decision based on erroneous, incomplete, or inappropriate information reconsidered. The Act merely provides that a student or his parent can request correction or amendment of a record. Although there are due process mechanisms in schools that can be used to force reconsideration when the decision is a major one, many decisions do not lend themselves to formal reconsideration, nor is correction or amendment of a record always enough to repair or halt the damage. In decentralized educational organizations, corrections or amendments may not be propagated through-out the systems; and in large systems, where administrative decisions are separated from the process of correcting or amending records, corrections may not come to the attention of decision makers. Moreover, in certain types of selection processes where there are more applicants than available places, as in the case of programs for gifted children or admission to professional schools, the institution may have strong incentives to overlook a correction or amendment made by a rejected applicant. The right to correct an erroneous record may be a hollow remedy if the individual has no way to challenge a decision based on that record.