At the end of 2018, the U.S. Department of Education announced through informal guidance that it was modifying its investigation process for complaints filed under FERPA and moving to “a risk-based approach” in handling such complaints.
The guidance goes on to note that the Department believes that the regulations implementing FERPA do not require a formal investigation in every case and suggests the Department is seeking to reduce the number of formal investigations.
Looking at the two purposes of FERPA – providing privacy to students for information contained in their records and providing access to students and parents to their own information – at times may be best achieved through less formal means than a formal investigation.
For example, when disputes involve the right to access, the guidance suggests that the Department may attempt to resolve these complaints by acting as an intermediary between the school district and the parents, rather than launching a full blown investigation.
When looking at improper disclosure of personally identifiable information, especially in terms of isolated incidents of inadvertent or accidental disclosure – the Department notes that the goals of FERPA may be better achieved by providing technical assistance to the educational entity to prevent such future disclosures.
Bottom Line for Schools
While the guidance is likely to lead to a reduction in formal FERPA investigations, the guidance does not state when such investigations will be done or what criteria will be used by the Department to determine if a formal investigation is warranted or not.
As a result, school entities should not let their guard down on FERPA compliance, as the Department will continue to conduct investigations as they have in the past. In addition, the guidance notes that the Department will continue to conduct self-initiated investigations where the Department decides to proceed with an investigation even without a complaint. Accordingly, school entities should continue to ensure that staff are trained in their obligations under FERPA and are complying with those obligations.
If your school has a FERPA Compliance question, please contact your legal counsel or one of the attorneys at KingSpry.
This School Law Bullet is a publication of the KingSpry Education Law Practice Group. John E. Freund is our editor. It is meant to be informational and does not constitute legal advice.
