Personal Privacy in an Information Society. Record Keeping in the Education Relationship

07/12/1997

An individual's relationships with educational institutions help shape his personal development and may substantially affect the degree to which he can enter into and benefit from all other social and economic activities and relationships. The records about individuals that the education relationship generates affect almost everyone, for nearly every American has or will have spent some time in at least one educational institution.1

Within an educational institution, education records2 form a back-ground against which decisions about an individual student's status or progress are made, not only at the major turning points in his educational career, but also on a daily basis where they shape unobtrusive but significant decisions about him. Educational record-keeping practices, however, vary substantially by size of institution and sophistication of administrative practices. They also vary as students move along the continuum from pre-school toward post-graduate education, because the role of educational institutions varies along the same continuum.

Society grants educational institutions substantial authority over students and substantial freedom to gather, record, and use information about them without their consent or the consent of their parents. This is considered necessary if educational institutions are to provide basic instructional services and maintain an environment conducive to learning and personal development. Nonetheless, the authority to act in loco parentis carries with it the responsibilities of stewardship. Report cards, conferences, and parent-teacher associations are all devices by which educational institutions are held directly accountable to parents and students. In addition, through the election of school officials, as well as through licensing, accrediting, and the enactment of State education codes, educational institutions are held accountable to the society as a whole.

The accelerated pace of social change in recent decades has subjected the stewardship role of educational institutions to unprecedented stress. The population explosion of the past thirty years, the growing mobility of the American population, and the rapid increases in the breadth and specializa-tion of knowledge have all had a direct impact on educational institutions. Parents, students, and society as a whole have developed new expectations as to the skills educational institutions should impart. Courses now cover subjects ranging from woodworking and driver education to regression analysis and zero-based budgeting. With this growth in size and scope of responsibility, have come bureaucratic forms of administration, larger budgets, mounting pressures to demonstrate effectiveness, and a heightened drive for autonomy and special prerogatives on the part of professional educators.

Over the last fifteen years, the Federal government has affected all levels of education through financial assistance programs aimed at helping educational institutions to meet their responsibilities, and also at using educational institutions to further other social purposes, such as equal opportunity. This has reinforced the educational system's own gravitation toward bureaucratic administration and professional specialization. It has also altered record-keeping requirements and practices, modified power balances within educational institutions, and made many educators wary of Federal regulation.

The combined impact of all these changes on record keeping about students has been the focus of Commission concern. Educational institu-tions make and keep more records about students today than ever before. More people participate in making and keeping education records, and more people outside the educational system want access to them for other than educational purposes. Moreover, the emphasis in educational record keeping has shifted from reporting progress to parents and supplementing personal contact in instructing and making decisions about students to serving not only as a management tool but also as a means of justifying an educational institution's actions and budget, and as a surrogate for personal contact with students. These changes have elevated the importance of education records in American society, and thus the importance of good school record-keeping practices.

The importance of educational record keeping today was formally recognized in 1974, when the Congress enacted the Family Educational Rights and Privacy Act (hereinafter FERPA). [20 U.S.C. 1232g] This legislation gives parents of minor students, and students who are over 18, the right to inspect, correct, amend, and control the disclosure of information in education records. It obliges educational institutions to inform parents and students of their rights, and to establish policies and procedures through which their rights can be exercised.

FERPA represents an alternative to the omnibus approach to regulating record keeping. taken by the Privacy Act of 1974. The Privacy Act, applicable to all Federal agencies, levies a broad set of requirements on a diverse mix of records and record-keeping institutions. FERPA, in contrast, is targeted on education records, the individuals to whom they pertain, and the institutions that keep them.

FERPA, the Department of Health, Education, and Welfare (DHEW) regulations implementing it [45 C.F.R. 99], and the activities of the Department in carrying out its responsibilities under the law, exemplify, albeit imperfectly, a novel regulatory strategy that might be termed "enforced self-regulation." The regulated institutions are responsible for developing and implementing policies and procedures that meet minimum requirements established by law. Those legal requirements state objectives for the development and implementation of local substantive and procedur-al requirements, but do not prescribe detailed substantive standards or impose fine-grained procedures. Such a strategy entails penalties for violations of locally established standards and procedures, but does not impose any particular interpretation of substantive standards. Rather, it relies on making an institution accountable to those whom it most directly affects without requiring either prior Federal approval of local policies and procedures or systematic Federal monitoring of each institution's performance.

To evaluate the merits of FERPA as a privacy protection statute, the Commission held public hearings in October and November 1976 to learn about the experiences of parents, students, professional educators, and educational institutions in complying with the law. At the time of the hearings, the Department of Health, Education, and Welfare's final FERPA regulations had been in effect less than nine months, although the statute had been in force for almost two years. Many institutions were still developing, or had only recently begun to implement, their FERPA policies and procedures.

In the Commission's view, however, the hearing testimony confirms the necessity and validity of most FERPA requirements and the potential effectiveness of "enforced self-regulation." The hearing record also indicates that some features of the statute and regulations make implementation difficult or dilute its effectiveness. Nonetheless, FERPA is apparently leading educational institutions to respect some basic record-keeping rights that were not uniformly accorded students or parents before the Act was passed.

Educators, parents, and students have generally accepted FERPA's principles despite some minor problems and misunderstandings, and the extreme sensitivity of educational institutions to Federal regulation. In spite of the substantial delay in issuing regulations and the resulting lack of awareness and even misunderstanding of the law, the testimony of educational institutions indicates that enforced self-regulation can take hold, and, if strengthened, can be an effective tool for striking the proper balance among individual, institutional, and societal interests.3

This chapter reports the results of the Commission's assessment of the Family Educational Rights and Privacy Act of 1974 and recommends some changes in the Act that will make it better able to achieve the Commission's public-policy goals of minimizing intrusiveness, maximizing fairness, and creating legitimate, enforceable expectations of confidentiality. The first section focuses on the role of record keeping about students. It summarizes the missions and functions of the various types of educational institutions and describes the records they keep and how they collect, use, and disclose information about individual students. This section also describes the testing and data-assembly service organizations whose highly specialized education records play a major role in post-secondary admissions and financial-aid decisions.

The second section describes the Family Educational Rights and Privacy Act, its accompanying DHEW regulations, and the experience to date in implementing the law. The third section assesses how well personal privacy is protected by FERPA, and presents the Commission's basic conclusions. The focus in the third section is on specific record-keeping problems that arise in the various types of educational institutions and the tools the individual currently has for coping with them. The final section recommends additional steps to clarify and strengthen FERPA as an instrument for achieving the basic objectives of the Commission as they relate to educational record keeping.