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School Safety and Student Privacy: Betsy DeVos Seeks to Clarify Law

By Alyson Klein — February 12, 2019 3 min read
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The U.S. Department of Education Tuesday sought to clear up confusion about how school privacy laws should be interpreted in the context of school safety with the release of a new frequently-asked-questions document that puts previous guidance and technical help on the Family Educational Rights and Privacy Act all in one place.

The new, comprehensive document, School Resource Officers, School Law Enforcement Units, and the Family Educational Rights and Privacy Act (FERPA), builds on conclusions from the Federal School Safety Commission, which found that school districts seeking to bolster their safety efforts were confused about when and how they could share student information without violating FERPA. President Donald Trump established the school safety commission in the wake of the mass shooting at Marjory Stoneman Douglas High in Parkland, Fla., last February.

“FERPA is an area where widespread confusion remains, and this clarification will give local school leaders and law enforcement the tools they need to protect student privacy while ensuring the health and safety of students and others in the school community,” said U.S. Secretary of Education Betsy DeVos in a statement.

Parkland victims’ families argued that the shooter, a former student at the school, was not flagged as a potential threat because educators at Stoneman Douglas did not share his troubled history with law enforcement. Officials from Broward Schools, like those in other districts, have expressed reluctance to share such information because of federal student privacy law.

But FERPA includes an exception that allows districts to disclose personally identifiable information from a student’s educational record without parental consent to designated “school officials” determined to have a “legitimate educational interest” in the information, the commission noted. The commission argued that school resource officers could receive such information because they have a legitimate interest in school safety. The new FAQ makes it clear that law enforcement officials who are school employees can be considered under this exception, under certain circumstances. If a district has outsourced school safety to an outside law enforcement unit, SROs or off-duty officers who are employed by that unit may also be considered school officials, if certain conditions are met.

What’s more, the law includes an exception for health and safety emergencies, the guidance notes. And it makes it clear that “law enforcement unit records” are not the same as “educational records” and can be disclosed to outside parties without violating FERPA.

“FERPA’s health or safety emergency provision permits such disclosures when the disclosure is necessary to protect the health or safety of the student or other individuals,” the FAQ says. “This exception to FERPA’s general consent requirement is limited to the period of the emergency and does not allow for a blanket release of [protected information] from a student’s education records. Rather, these disclosures must be related to a significant and articulable emergency, such as an impending natural disaster, a terrorist attack, a campus threat, or the outbreak of an epidemic disease.”

The recommendations on FERPA were perhaps among the least controversial of the commission’s conclusions. The panel also suggested that the Trump administration scrap Obama-era guidance that put schools on notice that they may be found in violation of federal civil rights laws if they enforce intentionally discriminatory rules—or even if their policies lead to disproportionately higher rates of discipline for students in one racial group or for students in special education, even if those policies were written without discriminatory intent.

And it encouraged school districts to take a hard look at arming “specially selected and trained” school staff.

Secretary of Education Betsy DeVos speaks at a news conference on March 7, in Coral Springs, Fla., following a visit to Marjory Stoneman Douglas High School.--Lynne Sladky/AP