School Safety and FERPA

March 6, 2019

The U.S. Department of Education (ED) recently published the final report of the Federal Commission on School Safety, which was formed in response to the school shooting in Parkland, Florida. Chapter 17 of the report details the relationship between efforts to ensure safe schools and the enforcement of the Family Educational Rights and Privacy Act (FERPA), which among other acts, governs the privacy of children’s educational records and personally identifiable information (PII) in all schools that receive federal funding.

The report noted that many misconceptions exist among local officials and educators concerning the privacy rights of student information as applied to school-based threats. In response, ED published 37 frequently asked questions (FAQ) to clarify the responsibilities of local officials relating to the disclosure of student information to law enforcement and others.

Some common FERPA questions involving school safety addressed in the FAQ include:
Can law enforcement unit officials who are off-duty police officers or SROs be considered school officials under FERPA and, therefore, have access to students’ education records?
Does FERPA permit schools and districts to disclose education records, without consent, to outside law-enforcement officials who serve on a school’s threat assessment team?
When is it permissible for schools or districts to disclose student education records under FERPA’s health or safety emergency exception?
Does FERPA permit school officials to release information that they personally observed or of which they have personal knowledge?

Generally speaking, FERPA protects student and family privacy by prohibiting the release of certain information from a student’s educational record unless it is done with the written consent of the parent or the child (once the child turns 18). Several exceptions to this prohibition include the release of information to school officials with a legitimate educational interest, other schools to which a student is transferring, financial aid institutions, and appropriate cases of health and safety emergencies, among others.

A law enforcement official who is an employee of a school division would generally be considered a school official, as would a School Resource Officer (SRO) if he or she performs an institutional service or function for which the school division would otherwise use employees (e.g., to ensure school safety), among other criteria. As such, these individuals may use PII to promote school safety and the physical security of students. Schools divisions and law enforcement may ensure compliance by entering memorandums of understanding (MOU’s) that specifically address these issues as well as appropriate use of re-disclosure.

Legislation passed by the 2019 General Assembly and awaiting action by the Governor requires all school boards using SROs to enter a MOU with local law-enforcement and for the Virginia Center for School and Campus Safety to develop a model MOU for use by local school boards and law-enforcement.

The full FAQ from ED can be accessed here.

VACo Contact: Jeremy R. Bennett

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