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Thursday, Dec. 20, 2001

On November 27, the Supreme Court heard arguments in Owasso Independent School District v. Falvo. The case began when Kristja and James Falvo sued their local Oklahoma school board in federal court.

The Falvos challenged, as contrary to statute, the school's practice of having students grade one another's assignments or tests, and announce the results out loud as the teacher recorded them in a grade book. The Falvos claimed that this practice embarrassed their sixth-grade son, who has a reading disability and who had lower scores than his classmates, and subjected him to ridicule.

FERPA and Its Regulations

The Falvos contended that the school's practice violated the 1974 Family Educational Rights and Privacy Act (FERPA) and related regulations. FERPA is a federal law that protects the privacy of student educational records; it applies to all schools that receive applicable Department of Education funding. FERPA defines an "educational record" as any information directly related to a student, recorded in any way - including, but not limited to, handwriting, print, computer media, video or audiotape, film, microfilm, and microfiche, and maintained by an educational agency or institution.

FERPA requires that schools have written permission from the parent of a child under the age of 18 years (or, if the student is 18 years or older, from the student) before disclosing any information from a student's educational record. Disclosure is defined as an institution's permitting "access to or the release, transfer, or other communication of personally identifiable information contained in educational records to any party, by any means, including oral, written, or electronic means."

Regulations allow disclosure to a limited set of persons and institutions: school officials with a legitimate educational interest, other schools to which a student is transferring, specified officials for audit or evaluation purposes, appropriate parties in connection with financial aid, and accrediting organizations. They also allow disclosures made pursuant to a court order or subpoena.

Does FERPA Give Rise to a Private Right of Action?

The Falvo case raises the question whether a violation of FERPA, which conditions federal school aid on compliance with its provisions, gives rise to an individual civil rights claim. The statute does not explicitly provide for a private right of action, but the Falvos argue that one should be inferred.

Amicus ("friend of the court") briefs filed by teachers' unions and free-speech advocates argue that no right should be inferred - a view that Justice Kennedy seemed to support, given his questioning during oral argument. But other amici, including the politically conservative Eagle Forum, argue that such a remedy is necessary if parents are to control their children's education.

Meanwhile, on the merits, the Bush Administration found itself on the side of the school board. . The Owasso school board argued that the Falvo boy's grade did not become a record until posted in the teacher's gradebook. And the Solicitor General filed an amicus brief on the side of the board, arguing for a restricted approach to what constitutes an educational record - one that would exclude the daily grades read aloud.

Under a broader approach, the Solicitor General pointed out, FERPA violations may be lurking behind such common educational practices as the public display of science projects, the posting of a classroom chart that records the number of books read by each student throughout the school year, and teachers' exhibiting exemplary homework or classroom assignments.

The Solicitor General also asked the court to defer to the Department of Education to issue clarifying regulations as to what counts as an educational record. Historically, however, DOE's interpretations of what constitutes an educational record have been so broad that the Administration's attempt to shift gears and narrow its interpretation may have given the Court pause. Meanwhile, the Department of Education has withheld any regulatory action pending a ruling in Owasso - so waiting for DOE to issue regulations will not help.

FERPA and The Virtual Classroom

An interpretation by the Court on the core issue of what constitutes an educational record may affect not only the traditional schoolroom, but the virtual classroom, too. Interestingly, however, distance-learning applications were not addressed in any of the amicus briefs.

An increasing number of institutions offer numerous courses online, with many providing entire undergraduate and graduate degree programs. Instructors may have their own Internet-accessible web sites, offer their courses through institutional technology platforms housed on internal servers, or utilize commercial management systems (CMS) like Blackboard or WebCT that are often housed on external servers. No matter how the learning is dished up, the opportunity for FERPA violations abound.

What in a traditional class is transitory may become an educational record when captured on a computer. Online student tests and assignments, student-instructor emails, and online gradebooks are just three examples of virtual records that are in danger of being disclosed in violation of FERPA.

Distance learning classes often utilize online testing either through the institution's web pages and server and/or that of a commercial provider of IT infrastructure. The course management software may grade the test, return it to the student, and post the grade in the teacher's online gradebook.

The online gradebook is accessible not only to the instructors, through their passwords, but to anyone in the institution with the teacher's password. That may include information technology personnel, network administrators, and course management system employees and agents. Yet these individuals arguably have no legitimate educational interest that would exempt them from FERPA's disclosure prohibition.

Televised synchronous learning, in which most institutions record and archive videotapes of each class, may raise even greater concerns. Conceivably, certain aspects of student participation in these classes could constitute an educational record, as well.

How Online Institutions Can Protect Themselves

To protect themselves from FERPA claims, institutions that provide virtual or other forms of distance learning should obtain students' consent for the intentional or unintentional access of their educational records by individuals involved in the technology infrastructure.

Such institutions should also take measures to protect the security and privacy of student work and emails from tampering by other students and outsiders who could hack and "worm" their way into gradebooks and assignments. Institutions may need to strengthen their firewalls and utilize digital certificates or encryption.

Though Owasso involves traditional instructional methods, distance learning will push the boundaries of FERPA, enacted 27 years ago in a pre-wired education age. So far, very few institutions offering online courses and degrees have addressed FERPA in this context. Rather than waiting for the law--and lawsuits--to find them, distance learning educators and administrators should prepare themselves for an expansive interpretation of what constitutes an educational record and its maintenance and disclosure under FERPA.

Acting now to form partnerships with platform architects, course management systems designers, and FERPA-knowledgeable attorneys will help keep students and teachers in the virtual classroom, and out of the all-too-real courtroom.

Elaine Cassel practices in Virginia and teaches law and psychology online. She writes and delivers continuing legal education courses in Internet law, privacy, genetics, and health law and is the author of Criminal Behavior (Allyn & Bacon, 2001). She is Co Vice-Chair of the Genetic Research and Testing Committee of the ABA Science and Technology Law Section and a member of the Section's Privacy and Computer Crime Committee.

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