The Catholic University of America

Of Counsel - A Bulletin on Legal Issues at CUA - November 1997

Student Records

A Simple Idea Becomes a Regulatory Quagmire: Congress Amends FERPA

Legislators use FERPA to reflect changes in society. In 1992, it was amended to exclude campus law enforcement records from the category of protected education records. This change may be expanded if Congress adopts the Accuracy in Campus Crime Reporting Act (ACCRA). ACCRA would require open hearings for all campus disciplinary proceedings involving criminal allegations, even if no criminal charges have actually been filed. As proposed, ACCRA would also require universities to report "incidents" as well as "arrests" for alcohol, drug and weapons violations. While the final version may differ from the proposed legislation, ACCRA is likely to be acted on in some form during this session of Congress.

Congress recently adopted the Solomon Amendment, guaranteeing the military access to "directory information" defined differently than defined by FERPA. For instance, military directory information includes the level of education and the institution in which a student was most recently enrolled. A release of information to the military, required under the Solomon Amendment, even if it is outside the FERPA definition of directory information, will be deemed not to be a violation of FERPA: the Solomon Amendment overrides FERPA. At the same time, where a student chooses no disclosure of directory information, that rule applies to military requests as well as regular FERPA requests.

The military, however, might ask for information that can be released under the Solomon Amendment but that is not regularly collected by a school. It is unclear what a school's obligations are in this regard. Similarly, the military's reach might exceed its grasp and it may seek information that is not directory information under either the Solomon Amendment or FERPA. In such a case, disclosure would be a FERPA violation. Military requests, which are becoming more frequent, need to be analyzed carefully.

What started out as a simple concept that student records should be considered private has become a complex issue fraught with many ambiguities. This newsletter and its special insert are an attempt to distill FERPA information and provide it to administrators in an accessible format. Readers are cautioned that use of this summary information cannot be a substitute for reading the CUA student records policy. The Office of General Counsel also welcomes questions on FERPA.

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