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    4. DOE answers frequently asked questions about balancing FERPA rights and school safety concerns

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    DOE answers frequently asked questions about balancing FERPA rights and school safety concerns

    Feb 19, 2019

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    By Steven Richard

    The Department of Education provides important guidance to school officials who routinely seek to balance interests of safety and privacy for students.

    The United States Department of Education has issued an important and comprehensive set of frequently asked questions (FAQs) on schools’ and districts’ responsibilities under the Family Educational Rights and Privacy Act (FERPA) in the context of school safety. School administrators often face vexing challenges in understanding and balancing protecting the privacy rights of students while taking the fullest measures to ensure their safety. 

    In December, the Federal Commission on School Safety released a detailed report, which observed that “substantial misunderstanding remains at the local level among officials and educators concerning (FERPA), and in particular its application to school-based threats.” In response, the DOE’s FAQ document titled School Resource Officers, School Law Enforcement Units and the Family and Educational Rights and Privacy Act (FERPA) consolidates previously issued guidance and technical assistance into a single comprehensive resource to assist schools’ and districts’ understanding of when their privacy and safety obligations intersect. 

    The document contains 37 FAQs regarding responsibilities under FERPA relating to disclosures of student data to school resource officers, law enforcement agencies and other stakeholders. DOE also reminds that there may be other federal or state laws, such as civil rights and privacy statutes or regulations, that are relevant to decision-making regarding when and with whom schools and districts may disclose, without appropriate consent, student information. 

    Among the important FERPA questions addressed are the following: 

    ·       Who qualifies as a “school official” under FERPA and to whom may schools and districts disclose education records under the school official exception to FERPA’s general written consent requirement?

    ·       Can law enforcement unit officials who are off-duty police officers or SRO’s be considered school officials under FERPA and, therefore, have access to students’ education records?

    ·       What is a threat assessment team?

    ·       When is it permissible for schools and districts to disclose, without appropriate consent, student education records (or PII contained in these records) under FERPA’s health or safety emergency exception?

    ·       May a school make disclosures under FERPA’s health or safety emergency exception for emergency preparedness exercises?

    ·       Does FERPA permit schools to disclose any and all education records on a student to another school where the student seeks or intends to enroll?

    ·       Does FERPA permit the disclosure of PII from education records to officials of a state’s juvenile justice system?

    ·       Does FERPA permit school officials to release information that they personally observed or of which they have personal knowledge? 

    As we are reminded too often, we are living in a challenging time where school safety concerns arise daily throughout our nation’s schools. The FAQs are a must read for school administrators in understanding how they may permissibly disclose information when confronting ever-growing safety challenges.

    The foregoing has been prepared for the general information of clients and friends of the firm. It is not meant to provide legal advice with respect to any specific matter and should not be acted upon without professional counsel. If you have any questions or require any further information regarding these or other related matters, please contact your regular Nixon Peabody LLP representative. This material may be considered advertising under certain rules of professional conduct.

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