Recently, the U.S. Department of Education Privacy Technical Assistance Center issued new guidance relating to the Family Educational Rights and Privacy Act (FERPA) and school safety.

FERPA, the federal law that protects the privacy of student education records, applies to all schools that receive funds under an applicable program of the U.S. Department of Education. Though the law is sometimes regarded as an obstacle in crisis situations, the new guidance serves as a reminder to schools that “FERPA affords schools and districts flexibility when responding to circumstances that threaten the health or safety of individuals in their school community.”

A link to the new guidance can be found here.

The guidance, a 22-page set of FAQs, has some possible implications to school safety decisions that warrant a closer look. The first half reviews age-old basic questions about FERPA, such as what are parent/student rights under FERPA, the definition of “education records,” and what constitutes personally identifiable information.

The second half (beginning on page 10) dives into the meat of the guidance, including whether Personally Identifiable Information (PII) can be disclosed to law enforcement units, threat assessment teams, and others without parent/eligible student consent.

Most notably, the guidance clarifies that pursuant to the “school official” exception, PII from education records can be provided to threat assessment team members who are not employees of the school district “to determine whether there is a health or safety emergency.”

The guidance also indicates that law enforcement unit officials who are employees of a school/district, as well as off-duty police officers and school resource officers (SROs), may qualify as “school officials” under FERPA who are entitled to PII or other information from education records without parent/student consent or in circumstances other than those designated a health and safety emergency.

The guidance explains that when measuring whether there is an “articulable and significant threat” for purposes of determining that there is a health or safety emergency justifying disclosure of PII without consent, a school official should be able to explain, based on the information available at the time, what the threat is and why it is significant when the school official makes and records the disclosure. 

Finally, in the answer to Question 31, PTAC indicates that a district can disclose information concerning disciplinary action taken against a student who has been disciplined for conduct that posed a significant risk to the safety or well-being of that student, other students or members of the school community to school officials at another school if the other school has legitimate educational interests in the behavior. This represents a shift of the traditional practice of many school districts that only share student behavioral information with another district in response to a record request from such district as related to the student’s pending enrollment application in such other district.

The attorneys at Caplan & Earnest’s education law practice are available to answer your questions about these new developments. The practice is the largest in Colorado, and today, we support more than half the districts in the state with a wide range of legal counsel and support services. We represent large urban to small rural school districts, boards of cooperative educational services and other local educational agencies.

Call 303-443-8010 for more information.