Published Online: November 2, 2007
Published in Print: November 7, 2007, as Spellings Offers Guidance to Help Clarify Privacy Law

Spellings Offers Guidance to Help Clarify Privacy Law

Document seeks to tell when concerns about a student may be shared.

The Department of Education has issued simpler guidance for parents and educators aimed at clearing up widespread confusion about when information may be shared under the main federal student-privacy law. The document tries to help schools more easily identify students who pose a threat of violence and get preventive aid for them.

Also, the FBI has issued a report indicating that the most prevalent incidents of crime in schools and colleges are simple assaults, followed by drug violations and destruction of property.

The simpler guidance for understanding the Family Educational Rights and Privacy Act, or FERPA, grew out of recommendations by federal officials, including Ms. Spellings, that studied the fatal April 16 shootings at Virginia Polytechnic Institute and State University, in Blacksburg, Va. A panel established by Virginia Gov. Tim Kaine, a Democrat, had recommended that Congress and the Education Department consider changes to FERPA and its regulations to clarify confusing provisions of the law and to offer stronger protections for school officials over disclosures of student information.

The department stopped short of that recommendation. Three brochures published by the department explain the agency’s interpretations in plain language.

Secretary of Education Margaret Spellings said that providing materials that better explain the law was a necessary first step before determining whether FERPA needs to be amended by Congress or further clarified through new regulations from the department.

“I think it’s important for people to understand what the current law allows. And it does allow information to be shared, particularly when the student is a dependent—a kid and not an emancipated adult,” Ms. Spellings said on Oct. 30 at a press conference about the brochures at Mount Vernon High School here in suburban Washington. “But—so, you know, before we leap into changes, let’s make sure that we’re maximizing all of the flexibilities and information and latitudes that the law does provide within the context of privacy.”

Once K-12 officials have had a chance to review the law in plain language, “we’ll sort of see from school personnel what else may or may not be needed,” she added.

Provision in Congress

The brochure aimed at K-12 educators says that FERPA permits them to share their personal observations of a student with parents and law enforcement officials. The Virginia Tech panel’s report found that many of the educators and university officials who encountered the student gunman, Seung Hui Cho, who killed 32 people on the campus and himself, were not aware that they could share concerns about his behavior, including disturbing writings and a tendency to stalk female students, without violating the school privacy law. ("Role of Privacy Laws Scrutinized in Report on Va. Tech Tragedy," Sept. 12, 2007.)

The brochure also explains that K-12 educators may disclose any educational records, including personally identifiable information, to protect the health or safety of a student or other individuals.

“I do think it’s going to be helpful as a reminder. It’s in a user-friendly format,” said Elizabeth E. Ewing, the director of legal and policy services for the Virginia School Boards Association, based in Charlottesville.

But legislation pending in Congress could lead to new FERPA guidance. The Senate last month approved an amendment to an education spending bill that would require the department to issue updated guidance on the school privacy law within three months of the bill’s enactment.

The provision, introduced by Sen. Sherrod Brown, D-Ohio, and Sen. Jim Webb, D-Va., would require the secretary of education to revise FERPA guidance issued in 2002 to incorporate lessons learned from the Virginia Tech shootings. The 2002 guidance has not been updated as it should have been, Sens. Brown and Webb said in an Oct. 23 statement.

“In the wake of the Virginia Tech tragedy, it has become apparent that school administrators lack the necessary guidance when it comes to sharing information with law enforcement and other entities about students who may be threats to themselves or others,” Mr.Webb said in the statement. “Schools should be clear about their legal authority to share relevant information, without fear of liability, in order to properly protect their students.”

Sens. Brown and Webb did not respond to questions seeking their reactions to the brochures.

The brochures were not created in response to the Brown-Webb provision, said Casey Ruberg, a spokeswoman for the Education Department. Secretary Spellings planned to issue materials explaining the law after a nationwide listening tour she conducted soon after the Virginia Tech shootings along with Secretary of Health and Human Services Michael O. Leavitt and then-Attorney General Alberto R. Gonzales. ("3 Cabinet Members Seek Solutions on Campus Safety," May 16, 2007.)

FBI Crime Report

Meanwhile, the FBI report found that more than 3 percent of overall U.S. crime incidents reported from 2000 through 2004 to a federal data-collection system occurred in schools and colleges. That marks the first time the FBI has issued a report that examines detailed incident reports of criminal behavior in schools, the agency said.

The FBI studied data collected by the National Incident-Based Reporting System, in which local law-enforcement agencies voluntarily submit detailed information about individual crimes. The NIBRS is distinct from the FBI’s Summary Reporting System, which is generally less detailed. Through 2004, the last year included in the report, about one-third of the nation’s state and local law-enforcement agencies were submitting such data. Those agencies cover about 22 percent of the U.S. population, according to the report.

The FBI report, released Nov. 1, includes incidents in K-12 schools and colleges, but doesn’t distinguish between them. The report cautions against making generalizations about the data, since increases in the number of offenses from year to year may be largely the result of more law-enforcement agencies using the reporting system, rather than evidence that certain school-based crimes are becoming more prevalent.

The largest age segment among those arrested in school- or college-based incidents were 13- to 15-year-olds, who made up 42 percent of the total, the report says. Arrestees who were 16 to 18 years old were about 33 percent of the total. Males appeared to be significantly more likely than females to engage in school-related criminal behavior; they comprised over 76 percent of the alleged offenders for whom gender was known.

But that doesn’t necessarily mean schools should focus their attention only on males or students in the 13- to 15-year-old age bracket, said Dave Resch, the unit chief for the FBI’s Behavioral Analysis Unit. “These cases have to be looked at individually,” he said.

Many observers associate school violence with high-profile shooting incidents, such as the ones at Virginia Tech or the 1999 shootings at Columbine High School in Colorado. But the statistics show that far more frequently, school crime involves incidents such as simple assaults, drug violations, vandalism, and theft.

“Schools are dealing with this daily,” said Tom Bush, the assistant director for the FBI’s criminal-justice information-services division.

Mr. Resch said he was surprised to find that knives were used more often than handguns in school-based assaults and other crimes. Knives and similar cutting instruments were used in 10,970 incidents from 2000 to 2004, while handguns were used in 2,008 incidents in the same period.

So-called “personal” weapons, such as the offender’s hands, feet, or fists, were used more often than any other type of weapon in school or college incidents, according to the report. Such weapons played a role in nearly 100,000 incidents from 2000 to 2004.

Vol. 27, Issue 11, Pages 22-23

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