Bulletin #17 HR2732 wording causes problems for higher education 12/18/2003
Did you know: The American Higher Education Report, Aug 2003, featured a story about the problems that HR2732 will cause for higher education.
Daren Bakst, Esq., President and General Counsel , Counsel on Law in Higher Education wrote a piece entitled, "Some Proposed Changes to FERPA You May Have Never Known About" for the American Higher Education Report, Aug 2003 issue (page 14 and 15- see reprint below). This is a publication that is read by higher education leaders and policymakers to inform them about the leading law and policy issues affecting our nation's higher education system. Their website is at http://www.clhe.org/ They are concerned with student's rights and higher education policy, as well as legislative issues which impact post secondary education. Here is another bulletin to explain the issue http://www.clhe.org/regadvisor/ExceptionsandLimitationstoFERPARightsofAccess.shtml and their web page about FERPA http://www.clhe.org/privacy/page1.shtml
In this article he states that the language used in HR2732/SB1562 will be problematic for private colleges. The fact is that the words "non-public education" are not defined, so that future interpretations of the wording may not be clear. As he explains, courts will look to the plain language of a statute, and sometimes they rely solely on the language for interpretation. By not defining "non-public education" in this statute, this could be taken to include private colleges. This would mean that private colleges would have to get written consent before disclosing directory information, and public colleges would not.
Additionally there is a problem with the definition of student. In the new proposed legislation the words "in attendance" got taken out of the definition in order to have homeschooled students be covered under FERPA. This is problematic because it leads to mixed-up statutory language. For post secondary schools this has wide reaching complications. Thousands of students who have applied for college, and now have college records at those colleges, but are not "in attendance" (because they chose to attend other schools) would be subject to FERPA rights.
Of course there could be a simple technical fix to this, but as Mr. Bakst points out in his article the wording of legislation may cause "unintended consequences". He states that, "A deleted word here and an undefined terms there may seem unimportant today - but could cause a major headache tomorrow".
We agree with Mr. Bakst, and although he is not specifically concerned with the homeschool issue here, the point is that the wording of these federal statutes is crucial. If the language of a bill is not well defined it will cause unintended consequences later on. Problems arise when the language may not clarify the purported intent. Aside from the whole issue of the federal government not having the authority to legislate homeschoolers, our concern is that there is great potential for the words "home school" to be interpreted in many ways, and in fact there is no true definition at this point. As you can see, this legislation has some definite problems.
Judy Aron - Director of Research, NHELD – firstname.lastname@example.org
Note: in the PDF file the 'problems with the language' have been lined out. This lining-out doesn't show up in this copy. In order to read it as written you need to view it at the site.
http://www.clhe.org/aher/aheraug03.pdf (The online PDF of the article in reference is no longer in existence: here is the text of the original article:)
Some Proposed Changes to FERPA You May Have Never Known About
By Daren Bakst
Important: Sometimes examining the FERPA statutory language is confusing because it is not as clear or comprehensive as the regulations—for example, even though the language above discusses the rights of parents only, the statute explicitly makes clear in a different section that students have FERPA rights at the postsecondary level, not the parents. One more example:
the definition of directory information in the regulations. A recently introduced bill in Congress, the Home School Non-Discrimination Act of 2003, H.R. 2732, could have a significant impact on the Family Educational Rights and Privacy Act (FERPA). The good news is there is no reason
to believe, as of now, that this bill is very close to becoming a reality. However, colleges and universities should be aware of this bill and understand how it would amend FERPA. For many institutions (excluding CLHE members), the existence of this bill may come as a surprise.
While the likelihood of passage may not be great for this year, this bill has fairly significant support especially given that it was just introduced in the middle of July (41 cosponsors, one of whom is Chairman Boehner of the House Committee on Education and the Workforce). The
House Committee seems to be pushing this bill—Boehner is listed as being one of the individuals who introduced this bill in a committee press release dedicated solely to the bill.
The intent of the FERPA amendments included in the bill is innocent enough—to ensure that homeschooled students’ records are protected under FERPA. The problem is not the purported intent, but instead the proposed legislative language used to achieve this objective. The proposed legislative changes to FERPA are indicated below (bold means proposed new language; a line through the text means the language would be removed): 20 U.S.C. § 1232g (a)(5) (Note: This is the definition of “directory information”)
(5)(A) For the purposes of this section the term ‘’directory information’’ relating to a student includes the following: the student’s name, address, telephone listing, date and place of birth, major field of study, participation in officially recognized activities and sports, weight and height of members of athletic teams, dates of attendance, degrees and awards received, and the most recent previous educational agency or institution attended by the student.
(B) Any educational agency or institution making public directory information shall give public notice of the categories of information which it has designated as such information with respect to each student attending the institution or agency and shall allow a reasonable period of time after such notice has been given for a parent to inform the institution or agency that any or all of the information designated should not be released without the parent’s prior consent.
(C) For students in non-public education (including any student educated at home or in a private school in accordance with State law), directory information may not be released without the written consent of the parents of such student.
Problems with the language
Non-public education is not defined. Granted, it could be assumed to mean non-public K-12 education, but when courts and agencies try to interpret FERPA in the future, the clarity of this statutory intent may not be as clear. Courts always, or at least are supposed to, examine the plain
language of a statute, and sometimes they rely solely on the language. By not defining “non-public education,” could this include private colleges?
This new provision makes the disclosure of directory information more difficult by requiring parents/students to provide written consent first (directory information, as stated in (B) can automatically be disclosed unless parents/students opt-out). What if this distinction applied
to colleges (as opposed to just K-12)—private colleges would have to get written consent before disclosing directory information and public colleges would not. Recommendation: This is very simple—define non-public education to specifically exclude postsecondary education.
20 U.S.C. § 1232g (a)(6) (Note: This is the definition of “student”)
(6) For the purposes of this section, the term ‘’student’’ includes any person with respect to whom an educational agency or institution maintains education records or personally identifiable information, but does not include a person who has not been in attendance at such agency or
institution. including any non-public school student (including any student educated at home or in a private school as provided under State law). This paragraph shall not be construed as requiring an educational agency or institution to maintain education records or personally
identifiable information for any non-public school student.’
Problems with the language
The words “in attendance” get taken out of the definition of “student.” This may not be too much of a problem because “in attendance” is listed throughout the statute to qualify which students have FERPA rights. However, the purpose of striking this language is to eliminate the “in attendance” requirement completely so that homeschool students can be covered under FERPA. The result of changing the “student” definition leads to some mixed-up statutory language. The “student” definition does not have “in attendance” but the discussion of FERPA rights in the statute lists rights only being afforded to those students “in attendance.”
Why does “in attendance” matter? On the postsecondary level, this language is critical. A student does not have FERPA rights until they are considered “in attendance” at the institution (this can be defined by the institution—not to exceed the first day of classes). If this language is
eliminated, then students who have never been “in attendance,” but do have “college records,” would have FERPA rights (i.e. applicants to a college). Considering how many individuals apply but are not accepted to an institution, thousands of additional individuals (with no real affiliation with the institution) will now have FERPA rights.
Recommendation: Keep “in attendance” and simply create a specific exception in the definition of “student” to include K-12 non-public school students as it relates to their records at K-12 institutions or agencies only (postsecondary institutions specifically should be excluded).
20 U.S.C. § 1232g (b)(1)(F) (Note: This is one of the exceptions when disclosure is permitted without written consent. The disclosure can be to:
(F) organizations conducting studies for, or on behalf of, educational agencies or institutions for the purpose of developing, validating, or administering predictive tests, administering student aid programs, and improving instruction, if such studies are conducted in such a manner as will not permit the personal identification of students and their parents by persons other than representatives of such organizations and such information will be destroyed when no longer needed for the purpose for which it is conducted;
(G) organizations conducting studies for, or on behalf of, educational agencies or institutions for the purpose of developing, validating, or administering predictive tests, administering student aid programs, and improving instruction, provided—
`(i) such studies are conducted in such a manner as will not permit the personal identification of students and their parents by persons other than representatives of such organizations and such information will be destroyed when no longer needed for the purpose for which it is conducted; and
`(ii) for students in non-public education, educational records or personally identifiable information may not be released without the written consent of the parents of such student.
Problems with the language
The problem again is that “non-public education” is not defined. If private colleges were included then this specific exception to the general rule of institutions having to get written consent prior to disclosure would be inapplicable to private institutions.
The concerns expressed about the proposed legislation are simply technical corrections. Making the changes would not undermine the purpose of the language, but instead would prevent potential unintended consequences. Hopefully, these concerns will be expressed to Congress. A
deleted word here and an undefined term there may seem unimportant today—but it could cause a major headache tomorrow.
Daren Bakst, Esq. is the President and General Counsel
of the Council on Law in Higher Education.