The Family Educational Rights and Privacy Act and Research

D-Lib Magazine

January/February 2010
Volume 16, Number 1/2
Tabular array of Contents

FERPA and Pupil Work: Considerations for Electronic Theses and Dissertations

Marisa Ramirez
California Polytechnic State University - San Luis Obispo
<mramir14@calpoly.edu>

Gail McMillan
Virginia Tech
<gailmac@vt.edu>

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Abstruse

Information privacy is an important consideration when transitioning university collections from paper to electronic access. Yet the protection of — and limits to — student privacy regulations have rarely been addressed in the literature for online electronic theses and dissertations (ETDs). The Family Educational Rights and Privacy Human activity (FERPA) and its relevance to student piece of work should exist a consideration when widely distributing scholarship like e-portfolios, ETDs, and senior capstone projects. In this article, we share several campus approaches to FERPA and electronic student work.

Introduction

Protecting the privacy of students' grades, health records, and like documentation is not just a good idea, it is the law. But do protected "pedagogy records" encompass student works such every bit theses, dissertations, capstone projects, and the like?

In college instruction, graduate student scholarship and inquiry is frequently deposited in the university library with the expectation information technology will exist bachelor to library patrons, including students and kinesthesia, every bit well as to other academic institutions. Simply legislation such equally the Family Educational Rights and Privacy Act (FERPA) of 1974, featuring careful but vague wording, makes it challenging to make up one's mind the scope and reach of privacy laws.

Information privacy is an important consideration when transitioning academy collections from newspaper to electronic admission. Yet the protection of — and limits to — pupil privacy regulations have rarely been addressed for online electronic theses and dissertations (ETDs).

FERPA should be a consideration when widely distributing student work, including eastward-portfolios, ETDs, and senior capstone projects. In this article, we share several campus approaches to FERPA and electronic student work.

Student Information and FERPA

The Family Educational Rights and Privacy Deed of 1974, likewise known equally the Buckley Amendment, is a federal law designed to protect the privacy of pupil educational records in response to a history of inconsistent institutional policies and improper disclosure of student information.[1] Throughout the years, challenges to FERPA resulted in refinements to the Act, with the most recent changes occurring in December 2008.

This law applies to all public K-12 educational institutions and most postsecondary institutions that receive federal funds allocated by the US Department of Education. Amid other options, FERPA gives students the correct to audit and request corrections to their educational records as well equally to limit the release of "personally identifiable" data from their records.

Legally, educational institutions may disclose directory information. Directory data is divers as "data that would not by and large be considered harmful or an invasion of privacy if disclosed".[two] Students must be notified nearly the possible disclosure of directory information and accept an opportunity to "opt out", thus limiting disclosure of their directory information. Examples of directory information include the student'southward name, address, phone number, electronic mail, photograph, date and place of nascence, major field of written report, form level, enrollment status, dates of attendance, participation in university activities; weight and height of student athletes; degrees, honors and awards received; and the well-nigh contempo educational agency or institution attended.

In practice, some educational institutions have farther limited the amount of directory information they will release, including limiting disclosure of "locator" information such equally address and telephone number.[3]

Many universities allow students to limit disclosure of their directory information by using a secure university portal or other electronic system attainable from on or off campus with proper verification of their identification.

One time a student turns 18, or begins attention a college educational activity establishment, the FERPA rights transfer from the parent to the student. If the student is nonetheless claimed on the parent's income taxation returns as a dependent or if at that place are health and safety reasons, parents can still admission their child's educational records without the student's consent.

Schoolhouse administrators, teachers, and other school officials as well equally contractors and other outside service providers with "legitimate educational interest" are able to access education records without student consent. Merely a process does need to exist in place to ensure only the appropriate parties are privy to such information and that the information, in turn, is non wrongly disclosed to exterior entities. Schoolhouse districts and higher instruction institutions are responsible for utilizing reasonable methods to ensure that teachers, school officials and outside service providers obtain access to only those educational records — paper or electronic — in which they have legitimate educational interests."[four]

But what are considered "education records"? According to FERPA, education records are "straight related to a student and maintained past an educational agency or institution or past a party interim for the agency or establishment" and include "any information recorded in any way, including, but not limited to, handwriting, print, computer media, video or audio tape, film, microfilm, and microfiche." [5] This does not include private notes intended for personal use, educatee disciplinary, law enforcement or medical records, and certain student employee records.

The educational activity records of current and quondam students are protected under FERPA. Once a student limits disclosure of their directory information, it is honored even later on graduation. Just "an educational agency or institution is non required to notify former students about the establishment'southward directory information policy or let former students to opt out of directory information disclosures."[half dozen] A higher educational activity establishment can legally disclose directory information about alumni if those students did not limit disclosure of their information while they were enrolled at the establishment.

State laws on student privacy may place farther protections on students' educational records and each higher education institution has its own interpretation of the state and federal laws governing educational records.[7]

Selected Literature Review

FERPA and its relevance to student piece of work has received limited attention in the literature. Possibly that is because until the events of September xi, 2001, and the creation of the The states Patriot Human action,[eight] college didactics institutions did not experience outside interest or requests for student information.[9] Much of the focus has been on the development of campus compliance strategies in response to security breaches and privacy leaks of student data.[ten]

In fact, information technology was non until 2002 that universities began to rent primary privacy officers (CPOs). While common in the private sector, CPOs are still relatively rare in the academic world. These individuals help manage take chances on academy campuses, provide valuable guidance on compliance, give recommendations for increasing security measures, heighten awareness of privacy issues and campus responsibilities, and serve every bit a resource to help interpret the sometimes overly complicated legal jargon.[11]

Fifty-fifty with the implementation of student ePortfolios (an online compilation of a student's works) by the Connecticut Altitude Learning Consortium, FERPA was just ane of many decision points in implementing broad access to student piece of work.[12,13]

In the early 1990s, at that place was mounting business concern in some academy sectors that the FERPA definition of "education records" included the work of students. Would graduate and undergraduate works, such every bit dissertations, theses and capstone papers, fit within FERPA and, therefore, limit the release and circulation of such pupil works in some libraries? Spurred past a asking by the American Library Association, LeRoy S. Rooker, Director of the Section of Education's Family Policy Compliance Office, provided description in September 1993, recognizing that

"undergraduate and graduate "theses" often differ in nature from typical student inquiry papers and other educational activity records, such as written examinations, in that they are published or otherwise made bachelor as enquiry sources for the bookish customs through the institution's library. It has been and remains our understanding that in these circumstances an educational establishment would ordinarily take obtained the student's permission to brand his or her work available publicly before doing then, peradventure in connection with notifying the student of specific course or plan requirements. Consequently, an institution need not obtain a student's signed and dated specific written consent to disclose or publish a thesis in the library or elsewhere at the institution. Neither the statute, the legislative history, nor the FERPA regulations require institutions to depart from established practices regarding the placement or disclosure of student theses so long as students have been advised in advance that a particular undergraduate or graduate thesis will be made publicly available every bit part of the curriculum requirements."[14]

On Sept. xv, 1993 the Chronicle of Higher Teaching reported this interpretation later on contacting the Clan of Inquiry Libraries.[15] The post-obit calendar month information technology was reported to the academic library customs through a brief article in Higher and Research Libraries News.[16] According to the correspondence athenaeum of the Club of American Archivists, as described in the 2004 article "Navigating Ambiguous Waters: Providing Access to Student Records in the University Archives," the SAA also supported this action following a resolution put forth by the SAA's College and University Archives Section to "protect the traditional status of unpublished dissertations and theses as research materials."[17]

Student Data and Theses and Dissertations

From a university'due south point of view, its Institutional Review Board (IRB) exists, in part, to handle theses and dissertations with FERPA issues. IRBs ensure that the rights of participants are protected when research protocols involve human subjects, amongst other activities. These rights include maintaining the anonymity of individuals surveyed and non-disclosure of sensitive and private information.

In spite of this, theses and dissertations sometimes incorporate now-individual data such every bit Social Security numbers. These works, while available to walk-in patrons and interlibrary loan, sat on library shelves and infrequently circulated. Today theses and dissertations are commonly scanned to better admission to graduate student research and it requires additional careful work to ensure that sensitive information is not reproduced and distributed. Many academic libraries make scanned works openly accessible on the Web without explicit permission from the authors.[eighteen] Other universities, like Virginia Tech, follow a more cautious arroyo, providing university customs members-merely access to scanned theses and dissertations.

Considerations when Implementing ETDs: The Cal Poly Feel

In Spring 2008, the Robert Due east. Kennedy Library at California Polytechnic State University, San Luis Obispo, collaborated with their Inquiry and Graduate Programs Part to lay the groundwork for electronic thesis implementation. Given the campus emphasis on technology and innovation, the relatively small graduate population (comprising roughly half-dozen% of the full student enrollment), the existing centralized paper submission process, and the recent creation of the university'south institutional repository, implementation of ETDs seemed to be a natural side by side footstep.

Later on analyzing the paper workflow and reviewing other campus ETD implementations, the library conducted a campus pilot to collect content, make up one's mind workflow, test software, and place, review and update campus and library policies. FERPA became a salient issue during this phase.

Students control FERPA settings through the Cal Poly portal, an online centralized place for registration and enrollment data; employee data; college, department, and club information; and many widely used campus applications and computing services.

Once logged into the portal, a student tin can ready FERPA privacy restrictions, thus limiting the information shared with the campus and pupil directories, campus clubs and university alumni association. By default, the organization allows access to pupil directory information. A student can override the default and gear up a restriction that, in effect, electronically removes their information from public view.

The FERPA setting is shared with other Cal Poly campus systems relevant to enrollment, registration, student academic records and other specialized activities. Only campus officials with expressed needs can admission these systems, and decide the FERPA privacy settings of individual students.

During the pilot phase of the ETD submission process, questions were raised nearly the library need, ability, and responsibleness to verify pupil FERPA flags and privacy settings for student publications. Few library staff had access to these tools, presenting challenges in honoring FERPA settings. The broad FERPA definition of "education records" ostensibly encompassed all pupil work, which contradicted the library's mission of providing open access to student research and bookish output including master'south theses, graduate reports and undergraduate capstone projects.

A meeting with the campus FERPA Compliance Officer expanded the understanding of the legislation, and engaged the library in a period of cocky-review to identify and adjust library activities field of study to FERPA laws, such as circulation records, interlibrary loan requests, and student employment records.

Bolstered by the 1993 correspondence betwixt the American Library Association and LeRoy Rooker (in effect sanctioning the public circulation of educatee work notwithstanding FERPA), [nineteen] the library pursued an open access arroyo to the implementation of electronic thesis submission, circumventing the demand to incorporate additional authoritative or organisation checks to determine privacy settings.

A terminal consultation with the FERPA Compliance Officer resulted in added wording to the submission agreement, a required step during the electronic submission to the online repository. In item, the officer suggested adding the following statement:

"Students making submissions to this repository hold to share their work and waive any privacy rights granted by FERPA or any other law, policy or regulation, with respect to this piece of work, for the purpose of publication."

The statement serves to remind students that they are waiving privacy rights and notifies them that this exception overrides whatsoever FERPA privacy settings that they may accept previously set.

Accommodating FERPA Retroactively: Including the Virginia Tech Experience

From the start formal requirement that graduate students submit their theses and dissertations online at Virginia Tech in 1997, universities anticipated their legal vulnerabilities[20]. It was not due to the concerns well-nigh FERPA compliance, but rather apprehension about violating author rights and copyright infringement. Universities afterwards adopting ETD initiatives largely chose to have their graduate student authors formally hold to what had been standard library practice for over one hundred years. The typical agreement reads:

I hereby grant to [the institution] and its agents the not-exclusive license to archive and make accessible, under the conditions specified beneath, my thesis, dissertation, or project report in whole or in part in all forms of media, at present or hereafter known. I retain all other ownership rights to the copyright of the thesis, dissertation, or projection study. I also retain the right to use in future works (such as articles or books) all or function of this thesis, dissertation, or project report.

However, during a review of compliance guidelines, Virginia Tech legal counsel raised questions and reviewed policies and guidelines for various records management systems. In March 2009, such a re-examination of FERPA prompted officials at Virginia Tech to evaluate the accessibility of ETDs. This triggered a survey of institutions with ETD initiatives including a listserv query sent to ETD-L@listserv.vt.edu and NDLTD-BOD-L@listserv.vt.edu.

Results revealed that most universities take been largely unaware or unconcerned nigh the impact of FERPA on ETDs.

Only a scattering of universities accost FERPA within their ETD initiatives. For example, many of the Texas universities (e.grand., Baylor, Houston, University of Texas at Austin), require that students specifically waive their FERPA non-disclosure rights. The "Copyright and Availability Form" from Texas A&M Academy'due south Thesis Function says, "To the extent this thesis, dissertation, or record of study is an educational tape as defined in the ... FERPA ..., I consent to disclosure of it to anyone who requests a copy."[21] The Academy of Kansas evidently draws on FERPA without directly mentioning it on the KU ETD Release Form: "By signing below, the student is ... authorizing disclosure of the educatee's piece of work to others, and is relinquishing and waiving any claims that may ascend nether whatever statutory or common law protections..."[22]

University of Oregon addresses educatee rights broadly for its Scholars' Banking concern digital repository. According to their policy, "Students have given permission for public posting of whatsoever work they have authored that appears in Scholars' Banking concern, either direct to the host section or to the Libraries."[23]

Other institutions accept elected to address FERPA data on a university-wide level. For case, North Carolina State University'due south Function of Legal Affairs' "Legal Topics" include the "Student Privacy Law". Written consent is non necessary if students are notified that theses could be made publicly available equally part of curriculum requirements. [24]

About American universities mail service academy-wide FERPA guidelines and do not correlate privacy issues with ETDs. These policies are managed by legal affairs offices as at Westward Virginia [25] or past the registrar equally at Virginia Tech.[26]

International Perspectives on Student Privacy and ETDs

The response to a query of the Board of Directors of the Networked Digital Library of Theses and Dissertations (NDLTD-BOD-L@listserv.vt.edu) was consistent though small. International institutions identified student privacy rights as a US-axial issue, pointing out that their countries lacked laws that ensure the right to privacy. However, they as well pointed out that their countries focus more than on public versus private adept and ensuring admission to data rather than protection.

Determination

Given the importance and attending given to FERPA, it is surprising that and then little has been published about FERPA and online student works such every bit ETDs.[27] It is inaccurate to conclude that this is due to either express knowledge or indifference about the topic. Rather, we speculate similar Richard Rainsberger, frequent author of FERPA interpretations for the American Association of Collegiate Registrars and Admissions Officers, "We practise not modify our policies merely because our educational delivery methods have changed."[28]

FERPA should exist a consideration when providing broad access to e-portfolios, ETDs, and electronic senior capstone projects so that anybody in the university customs is aware of the myriad of related bug.

Endnotes

1. 20 US Code. Sec. 1232g; 34 C.F. R. Part 99. Family Educational Rights and Privacy Act of 1974. Federal Register. 73 (2008): 74806 -74855. Retrieved 6 Aug. 2009 http://www.ed.gov/legislation/FedRegister/finrule/2008-4/120908a.pdf.

2. Ibid.

3. Your Privacy Rights: Questions and Answers. 18 Aug 2009. Office of the Registrar, California Polytechnic State Academy — San Luis Obispo. Retrieved 6 Aug. 2009 http://www.ess.calpoly.edu/_records/stu_info/ferpa_q&a.htm.

4. United States. Family Policy Compliance Office. Family Educational Rights and Privacy Act (FERPA) Last Rule, 34 C.F.R. Part 99, Section-by-Section Analysis (Dec 2008). Washington: GPO, 2008. Retrieved vi Aug. 2009 http://www.ed.gov/policy/gen/guid/fpco/pdf/ht12-17-08-att.pdf.

v. 20 US Code. Sec. 1232g; 34 C.F. R. Function 99.iii. Family unit Educational Rights and Privacy Act of 1974. 2008. Retrieved half dozen Aug. 2009 http://edocket.access.gpo.gov/cfr_2008/julqtr/pdf/34cfr99.3.pdf.

6. 20 US Lawmaking. Sec. 1232g; 34 C.F. R. Office 99. Family Educational Rights and Privacy Human activity of 1974. Federal Register. 73 (2008): 74806 -74855. Retrieved 6 Aug. 2009 http://world wide web.ed.gov/legislation/FedRegister/finrule/2008-four/120908a.pdf.

7. Baker, Thomas R. "Navigating State and Federal Student Privacy Laws to Design Educationally Sound Parental Observe Policies." New Directions for Pupil Services, 122 (2008): 81-103.

8. Public Law 107 - 56. http://www.gpo.gov/fdsys/pkg/PLAW-107publ56/content-detail.html.

ix. Toglia, Thomas 5. "How Does the Family unit Rights and Privacy Act Affect You lot?" Pedagogy Assimilate, October 2007: 61-65.

ten. Bakery, Thomas R. Ibid.

11. Guernsey, Lisa. "A Wealth of Data, and Nobody in Charge." Chronicle of College Pedagogy, 25 Nov 2008: 1.

12. Goldsmith, Diane. "Enhancing Learning Assessment Through e-Portfolios: A Collaborative Effort in Connecticut." New Directions for Educatee Services, 119 (2007): 31-42.

13. Jafari, Ali. "The "Sticky" ePortfolio System: Tackling Challenges and Identifying Attribute." EDUCAUSE Review, July/August 2004: 38-49. Retrieved 18 Sept. 2009 http://www.educause.edu/EDUCAUSE+Review/EDUCAUSEReviewMagazineVolume39/TheStickyePortfolioSystemTackl/157912.

xiv. "Department of Education Clarifies Access to Theses." ALA Washington Office Newsline, 8 Sept 1993. Retrieved 6 Aug. 2009 http://serials.infomotions.com/alawon/alawon-v2n37.txt.

15. Jaschik, Scott. "Education Section Backs Off Argument that Colleges Need Permission to Continue Pupil Theses in Libraries." Chronicle of Higher Teaching, fifteen Sept. 1993: 32.

sixteen. Henderson, Carol C. Ibid.

17. Chute, Tamar Thou., and Ellen D. Young man. "Navigating Ambiguous Waters: Providing Access to Student Records in the University Archives." American Archivist, Fall/Winter 2004: 212-233. Retrieved twenty Sept. 2009 http://archivists.metapress.com/content/v418724687421m15/fulltext.pdf.

18. Mundle, Todd One thousand., Simon Fraser Academy. David Palmer, University of Hong Kong. Emails to Gail McMillan. 12 December. 2005.

19. Henderson, Carol C. "Department of Education Clarifies Admission to Theses." College and Research Libraries News, 54.9: 527.

twenty. Play a trick on, Edward A., John L Eaton, Gail McMillan, Neill A. Kipp, Paul Mather, Tim McGonigle, William Schweiker and Brian DeVane. "Networked Digital Library of Theses and Dissertations: An International Effort Unlocking University Resources." D-Lib Magazine. Sept 1997. Retrieved 21 Sept. 2009 doi:10.1045/september97-fox.

21. "Copyright and Availability Form." 2009. Thesis Office, Texas A&M University. Retrieved 18 Sept 2009 http://thesis.tamu.edu/files/copyright_availability_form.pdf.

22. "Electronic Theses and Dissertations (ETD) Release Grade." Mar. 2008. Academy of Kansas. Retrieved 18 Sept 2009 http://www.graduate.ku.edu/-downloads/04-d6_KU_ETD_release.pdf.

23. FERPA and Scholars Bank. 26 Aug. 2006. University of Oregon Libraries, University of Oregon. Retrieved 20 Sept 2009 http://libweb.uoregon.edu/catdept/irg/SB_ferpaRev.html.

24. Educatee Privacy Law (FERPA). 01 Aug. 2008. Office of Legal Affairs, North Carolina Land University. Retrieved 20 Sept 2009 http://www.ncsu.edu/legal/legal_topics/student_privacy.php.

25. FERPA@WVU: Almanac Notice to Students. 18 Aug. 2009. Westward Virginia University. Retrieved 20 Sept 2009 http://ferpa.wvu.edu.

26. Confidentiality of Student Records (FERPA). 2007. Virginia Polytechnic Institute and State University. Retrieved 20 Sept 2009 http://www.registrar.vt.edu/records/ferpa.php.

27. The dearth of information extends to the Periodical of College and Academy Constabulary, 1992-2005, Library Trends, and the Journal of Academic Librarianship.

28. Rainsberger, Richard, "FERPA in the Digital Historic period: What You Need to Know." ECURE 2001: Preservation and Admission for Electronic College and University Records. Mesa, Arizona. 12 Oct. 2001. Retrieved 20 Sept 2009 http://www.asu.edu/ecure/2001/ppt/rainsberger.ppt.

Nigh the Authors

Marisa L. Ramirez is primarily responsible for the development and implementation of the DigitalCommons@CalPoly, an open admission institutional repository for scholarship and research produced past Cal Poly kinesthesia and students. Prior to joining Cal Poly, she was the digital repository coordinator for the Arizona Retentivity Project, a statewide digital cultural heritage initiative based out of the Arizona State Library, Archives and Public Records Department. In this position, she led the initiative in developing, implementing and promoting the digital archive. She has also been active with digital library projects at University of North Carolina — Chapel Hill and Smithsonian Establishment Libraries.

Gail McMillan is a widely recognized adept on digital libraries, scholarly communications, and electronic theses and dissertations (ETDs). With the support of the U.S. Department of Teaching, Ms. McMillan was co-founder of the Networked Digital Library of Theses and Dissertations (NDLTD), an initiative to meliorate graduate education, increase sharing of noesis, assistance universities build their information infrastructure, and extend the value of digital libraries. As manager of the digital library and athenaeum at Virginia Tech, Ms. McMillan brings a librarian's perspective to her work with ETDs. She is a frequent author, presenter, and consultant on these issues and is uniquely qualified to assist other librarians support the handling of electronic theses and dissertations within their institutions.

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