As of December 9, 2008, the United States Department of Education published final regulations in its Federal Register to clarify and provide greater flexibility for colleges regarding disclosures of information from students' education records in order to address threats to the health or safety of students or other individuals. Draft regulations had been published on March 24, 2008 in response to the shootings at Virginia Tech and the June 2007, "Report ot the President on Issues Raised by the Virginia Tech Tragedy," written after United States Secretary of Education Margaret Spellings, United States Secretary of Health and Human Services Mike Leavitt and former United States Attorney General Alberto Gonzalez conducted a listening tour across the nation and concluded that especially with regard to the parents of college students, more guidance was necessary.
As an example, the new regulations state explicitly that in the case of a health or safety emergency, a college can disclose information about students without their permission. While the rules require some justification for such release, they make clear that the protections on student privacy are not absolute. Further highlights include:
To final regulation clarify that even after the rights under FERPA have transferred from parents to an eligible student (a student who is at least 18 years of age or attending a postsecondary institution), an educational agency or institution may still disclose education records to the student's parents without consent under several existing provisions of the act.
FERPA permits postsecondary institutions to disclose any and all information from a student's education records, without consent, to that student's parents if the student is a dependant for tax purposes under IRS rules.
FERPA permits a postsecondary institution to tell parent of students under the age of 21 when the student has violated any law or policy concerning the use or possession of alcohol or a controlled substance.
In order to provide more flexibility to school administrators, language was removed requiring strict construction of the provision in FERPA that permits disclosure of education records, without consent, in order to deal with health or safety emergencies. Now, in making a determination concerning disclosures, a school may take into account the totality of the circumstances pertaining to a threat to the safety or health of the student or other individuals.
The school must record the significant threat that formed the basis for the disclosure and the parties to whom the information was disclosed. If there is a rational basis for the determination, the Education Department will not substitute its judgement for that of the educational agency or institution in deciding to release the information.
The final regulations clarify the Educational Department's long standing interpretation that "appropriate parties."
The final regulations update the definition of "personally identifiable information."
Complete final regulations may be found on the Federal Register website at:
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