RAQs: Recently Asked Questions

Topic: Does FERPA regulate student publications and exclude them from being digitized? - 4/2/2019
We received two grant applications for projects involving the digitization of high school student ...
Posted: Tuesday, April 2, 2019 Permalink

MEMBER QUESTION

We received two grant applications for projects involving the digitization of high school student newspapers/magazines. The schools have given permission for these materials to be made available on a historic resource-focused, free database.

When our board was reviewing these grant applications, it was brought up that sharing student publications may not be possible under FERPA regulations. The board was concerned that these student publications might be considered educational records, which under FERPA would be subject to restricted access. If FERPA applies to these materials, they could not be uploaded and made accessible via an online database, and consequently would not be eligible for grant funding.

Does FERPA regulate student publications? Are there any other legal reasons student could not be made available freely in an online repository?

Thank you!

WNYLRC ATTORNEY'S RESPONSE

It took me 4 cups of coffee to figure out how to reply to this question!  And it’s not because I didn’t know the answer. 

FERPA is the “Family Rights Privacy Act.”  It bars disclosure of students’ “education records.”

“Education records” (like grades, disciplinary reports, attendance) are defined by FERPA as records:

               (1) Directly related to a student; and

(2) Maintained by an educational agency or institution or by a party acting for the agency or institution.

That is the entirety of the definition, from which many things—like names, team participation, dates of birth—are then excluded.[1]

The punishment for a FERPA violation is loss of ability to qualify for federal funds…a scary prospect for any school.  A FERPA violation also comes with a heavy dose of self-correction and shame, as an institution must fix whatever caused the problem, and often, send out letters of correction/apology.

With ten years as an in-house attorney at a university under my belt (and thus, a ten years’ worth of “FERPA Fear” in my brain), the minute I read this submission, I thought: Pshaw, no student newspaper or magazine is an education record under FERPA!  These grants are fine.

That was at cup #1.  But as I started cup #2, I thought: But why are these grants fine?  Why is no student newspaper or magazine an education record under FERPA?  Technically, they could meet the definition.

And those cocky ten years in higher ed were giving me no reason for my answer. 

For a lawyer, an answer without reasoning is no answer at all.  So I kept sipping (and researching). 

As I settled into cup #3, I reviewed some FERPA case law.   But although this were fun to revisit, by the time I was brewing cup #4, I realized: This is not telling me why a student newspaper or magazine doesn’t meet the definition of “education record” under FERPA.

It was only when I re-read FERPA’s definition for “disclosure” that I could back up my instinctive answer with actual legal reasoning. 

Remember, FERPA bars “disclosure” of student education records.  As it says in 20 U.S.C. 1232g(b)(1) and (b)(2)):

"Disclosure" means to permit access to or the release, transfer, or other communication of personally identifiable information contained in education records by any means, including oral, written, or electronic means, to any party except the party identified as the party that provided or created the record.  [emphasis added]

As I sipped gratefully at cup #4, there was the answer: if any student newspaper or magazine has content in violation of FERPA, the violation happened the minute it rolled off the presses…not when the content was published to a larger audience. 

It’s a bit metaphysical (or perhaps ontological) but bear with me: Re-publication in the way the member’s question describes—while arguably making an original violation bigger—cannot create a violation where there was none before. In other words, if FERPA-protected educational records were already “disclosed” via a student newspaper or magazine, allowing other people (students, parents, advertisers) unauthorized access to education records, there was already was a violation, back when the content was first published.  And if protected records aren’t already disclosed, the re-publication won’t be a forbidden disclosure, now.

To illustrate this, here is a hypothetical.  Let’s say that in 1991, the New Hartford High School newspaper (the Tattler!) printed all of my grades (without my permission).  That would have been a FERPA violation, about which I could have complained to the U.S. Department of Education.

Fast-forward to 2019.  Let’s say the Tattler ends up on New York Heritage, where everyone could then see that during the first Iraq war, I was a very strong scholar in English and History, but things were…a tad lacking in Math. 

While that would be a continuation of the old FERPA violation, it would not be a new violation (even if I was just seeing it for the first time).  And while I could still conceivably make a complaint to the USDOE, asking them to ask the school to work with New York Heritage to take it down, my options to do so would be limited, since there is no private cause of action or right to sue under FERPA. 

So, while I cannot “clear” unseen content for FERPA violations (remember my Tattler scenario), I can say that a new FERPA violation will not be caused by posting already-published material on New York Heritage.

In that same spirit, I will now address the other question the member asks:  Are there any other legal reasons student [publications] could not be made available freely in an online repository?

I wish I could just say “No,” and everyone could not worry about this at all.  But we must never underestimate the creativity of lawyers and plaintiffs in finding new ways to threaten legal action!  If the content of a particular student newspaper or magazine is scandalous or allegedly harmful enough, an attorney could try to frame a claim around some type of defamation or personal injury action.  And of course, when publishing content, there is always a potential claim based on copyright or trademark….even if that claim turns out to be bogus.

But these cautionary words are based on highly speculative scenarios.  There is no outright bar on sharing student publication content the way there is for disclosing grades, health information, and attendance-related records.  And because the digitization of student publications creates a useful array of otherwise ephemeral material, and can be a valuable snapshot of a culture at a particular place in time, there are  strong legal defenses for the digitization and publication of them by not-for-profit entities.[2]

To position a student publication digitization project to stand up to legal threats, a solid understanding and articulation of why the project has academic, social, and/or historic value, and a clear ability to show there is no “for-profit” motive, are fundamental.  By thinking through a digitization project, establishing its social value, and documenting its adherence to professional and scholarly ethics, it is easier to defend making the material freely available—and searchable. 

The good thing about grant funding is that the application and reporting process often builds these analyses right into the project. 

Thanks for this stimulating question!

 


[1] The whole list of exclusions is in the regulations found here: https://www2.ed.gov/policy/gen/guid/fpco/pdf/ferparegs.pdf. It does not specifically exclude publications.

[2] I could write a book, or at least a very long, heavily footnoted legal brief on these defenses, but for purposes of this response, you can trust they are there.

Tags: Privacy, FERPA

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