Students’ Records, FERPA And Letters Of Recommendation

Students have a right to privacy at school. What they say and do falls under FERPA, the Family Educational Rights and Privacy Act, or FERPA, 20 U.S.C. § 1232g.

It acts in two ways. First, it gives families a right to see ‘education records’ on file at school. Any record created about a student at any time, even after graduation, is an “education record.”  FERPA would thus protect the contents of a settlement agreement signed after graduation for an incident that happened while the student was still at school.

Second, it tells schools to keep the “personally identifiable information” in those records private unless the family consents to its disclosure. Such information can either be ‘direct identifiers’ like names and student i.d.’s, or ‘indirect identifiers’ like addresses and dates of birth. The point is to prevent someone from using unique patterns of information to trace a record to its source.

Some information comes not from the records themselves but from the community outside the school. For example, if a newspaper published a rumor that a local high school had disciplined a public official for cheating during her senior year, under the Freedom of Information Act someone could request the disciplinary records of all students caught cheating during the year the public official was a senior. Direct and indirect identifiers would not protect these records from disclosure.

In dealing with such “targeted” requests officials must look to the “school community.” They must decide if information in the news and in the media is enough to enable identification if they release the records. Clearly, this means that school officials can refuse disclosure if they believe the requester knows the identity of student in the records.

Greg Smith advises clients that letters of recommendation have their own place in FERPA. Until a college admits an applicant and she or he enrolls, letters of recommendation are not “education records.” FERPA thus does not give college applicants a right to see what the recommenders have said about them. Otherwise, writers would have no reason to be honest. This explains why the College Board advises all applicants to waive their FERPA rights when they ask for letters of recommendation.