This is a complex subject that's vulnerable to oversimplification. Let me try to "de-mystify" it a bit here, and invite anyone with deeper questions to contact the Student Press Law Center for help.
FERPA is an exceedingly narrow statute. It applies to very little. As the Supreme Court told us in a 2002 case, Owasso v. Falvo, Congress was concerned only with protecting the security of confidential education records that are kept in a centralized school repository -- the proverbial "permanent record" of which students are always warned. It is not, the Supreme Court and subsequent courts have told us, a generalized "student invisibility law," nor could it be for schools to do their jobs effectively.
Many school lawyers and administrators have been poorly trained about FERPA, in part because there are a handful of charlatans who make the rounds selling "FERPA training" with the goal of terrorizing schools about the risks of handling student information so that they'll buy more FERPA training. Be skeptical of them. The reality is that no school or college has ever been penalized one dollar for violating FERPA in the 44-year history of the law, nor will that ever happen. The Department of Education has regulations that must be followed before anyone can be fined, and here is what those regulations say: If your school gives away the contents of confidential student education records, then the Department must (if it receives a complaint) investigate the complaint and decide whether a "policy" or "practice" of releasing these records exists. If and only if a "policy" or "practice" exists, then the school gets ... a warning letter. The warning letter will say "please discontinue this practice." The only way a school can be fined is by writing back to the Department and saying "we refuse, and we plan to continue this practice." Which will never happen.
FERPA is about the contents of confidential, centrally maintained student education records and that's all it is about. So whenever you are told "FERPA prevents you from doing..." your first question should be: "Did we obtain this information from a confidential student education record?" The answer in student media invariably is "no." You generally obtained the information because a student (1) did something publicly visible (playing football, acting in a play), or (2) consented to the disclosure (showing up at Picture Day and posing, giving an on-the-record interview). Remember that the Department of Education has said, repeatedly:
FERPA applies to the disclosure of tangible records and of information derived from tangible records. FERPA does not protect the confidentiality of information in general, and, therefore, does not apply to the disclosure of information derived from a source other than education records, even if education records exist which contain that information. As a general rule, information that is obtained through personal knowledge or observation, and not from an education record, is not protected from disclosure under FERPA.
Needless to say, no school in the 44-year history of FERPA has ever received so much as a warning letter over a student yearbook or newspaper or website. If it was a violation of FERPA to put student identities into journalistic publications, including online ones, we would certainly know it by now.
FERPA recognizes a category of harmless everyday "directory information" that can freely be given out without needing consent. This includes much or all of what would appear in a student journalistic publication, such as a student's name, year in school, participation in extracurriculars and so on. FERPA allows a parent to "opt out" of the disclosure of directory information by submitting a written opt-out notice. It is not at all clear that, even for "opt-out" students, the opt-out applies to student media, for the reasons explained above: A newspaper or yearbook is not a "confidential education record," because its entire purpose is to be publicly distributed, and FERPA applies only to information gleaned from confidential education records. The one point of uncertainty is the database of students who've posed for Picture Day. It's arguable that that database is a centrally maintained FERPA record (that's probably wrong, but it's at least arguable), so if the yearbook obtains student portrait photos and names through the school administration and a parent has signed the opt-out form, then there is at least some room to argue that the yearbook ought not to publish the portrait and name of that opt-out student. (Nevertheless, if the opt-out student has done something public like playing football, there can be no FERPA violation in using an identifiable photo of the player, opt-out or no opt-out -- again, because the information did not come from a centrally maintained school database.)
There are some schools and districts that have misinterpreted FERPA and that have given parents an "opt IN" form as opposed to an "opt OUT" form. As explained, the circumstances under which any opt-in or opt-out can be applied to student-produced media are quite narrow, but in any event, no school or district should choose this option, which is a needless invitation to liability. Most parents will not send back the form. Under FERPA, not returning the form equals consent to release directory information. In an "opt-in school," not returning the form is a refusal to release directory information. No school wants this. Once a parent refuses to release directory information, that literally means that the student must be kept out of the the honor roll, the graduation list sent to the local newspaper and so on. No school wants to publish half the honor roll, so no school should purposefully misapply FERPA by turning an "opt out" opportunity into an "opt in." If you are encountering troubles with FERPA and directory information, ask to see a copy of the form that is sent to parents, and if you need help making sense of it, the Student Press Law Center can assist.
There is no federal "online invisibility law," either. To our knowledge, two states (New Jersey and Maine) have state statutes requiring advance parental consent before students' full names with photos can be placed onto a school-hosted, school-maintained website. But FERPA does not require this. It's possible for a state to impose confidentiality requirements more stringent than FERPA, but it's not true that FERPA forbids publishing identifying information about students online. There is in fact no differentiation in FERPA between a print and an online publication, nor does such a distinction exist generally in privacy law. Publishing is publishing, and (with the exception of those Maine and New Jersey laws) what's legal to publish in print is equally legal to publish online. (And note that even in Maine and New Jersey the law applies only to school-hosted websites, one reason of many to consider offsite hosting.)
The bottom line is that claims of FERPA confidentiality should always be viewed with skepticism, and when confronted with a claim that FERPA requires doing something that your common sense tells you is irrational, consider (1) asking "can you show me where in the law it says that, or the Department of Education has issued an interpretation saying that," and (2) calling the Student Press Law Center to get clarification.
FERPA is an exceedingly narrow statute. It applies to very little. As the Supreme Court told us in a 2002 case, Owasso v. Falvo, Congress was concerned only with protecting the security of confidential education records that are kept in a centralized school repository -- the proverbial "permanent record" of which students are always warned. It is not, the Supreme Court and subsequent courts have told us, a generalized "student invisibility law," nor could it be for schools to do their jobs effectively.
Many school lawyers and administrators have been poorly trained about FERPA, in part because there are a handful of charlatans who make the rounds selling "FERPA training" with the goal of terrorizing schools about the risks of handling student information so that they'll buy more FERPA training. Be skeptical of them. The reality is that no school or college has ever been penalized one dollar for violating FERPA in the 44-year history of the law, nor will that ever happen. The Department of Education has regulations that must be followed before anyone can be fined, and here is what those regulations say: If your school gives away the contents of confidential student education records, then the Department must (if it receives a complaint) investigate the complaint and decide whether a "policy" or "practice" of releasing these records exists. If and only if a "policy" or "practice" exists, then the school gets ... a warning letter. The warning letter will say "please discontinue this practice." The only way a school can be fined is by writing back to the Department and saying "we refuse, and we plan to continue this practice." Which will never happen.
FERPA is about the contents of confidential, centrally maintained student education records and that's all it is about. So whenever you are told "FERPA prevents you from doing..." your first question should be: "Did we obtain this information from a confidential student education record?" The answer in student media invariably is "no." You generally obtained the information because a student (1) did something publicly visible (playing football, acting in a play), or (2) consented to the disclosure (showing up at Picture Day and posing, giving an on-the-record interview). Remember that the Department of Education has said, repeatedly:
FERPA applies to the disclosure of tangible records and of information derived from tangible records. FERPA does not protect the confidentiality of information in general, and, therefore, does not apply to the disclosure of information derived from a source other than education records, even if education records exist which contain that information. As a general rule, information that is obtained through personal knowledge or observation, and not from an education record, is not protected from disclosure under FERPA.
Needless to say, no school in the 44-year history of FERPA has ever received so much as a warning letter over a student yearbook or newspaper or website. If it was a violation of FERPA to put student identities into journalistic publications, including online ones, we would certainly know it by now.
FERPA recognizes a category of harmless everyday "directory information" that can freely be given out without needing consent. This includes much or all of what would appear in a student journalistic publication, such as a student's name, year in school, participation in extracurriculars and so on. FERPA allows a parent to "opt out" of the disclosure of directory information by submitting a written opt-out notice. It is not at all clear that, even for "opt-out" students, the opt-out applies to student media, for the reasons explained above: A newspaper or yearbook is not a "confidential education record," because its entire purpose is to be publicly distributed, and FERPA applies only to information gleaned from confidential education records. The one point of uncertainty is the database of students who've posed for Picture Day. It's arguable that that database is a centrally maintained FERPA record (that's probably wrong, but it's at least arguable), so if the yearbook obtains student portrait photos and names through the school administration and a parent has signed the opt-out form, then there is at least some room to argue that the yearbook ought not to publish the portrait and name of that opt-out student. (Nevertheless, if the opt-out student has done something public like playing football, there can be no FERPA violation in using an identifiable photo of the player, opt-out or no opt-out -- again, because the information did not come from a centrally maintained school database.)
There are some schools and districts that have misinterpreted FERPA and that have given parents an "opt IN" form as opposed to an "opt OUT" form. As explained, the circumstances under which any opt-in or opt-out can be applied to student-produced media are quite narrow, but in any event, no school or district should choose this option, which is a needless invitation to liability. Most parents will not send back the form. Under FERPA, not returning the form equals consent to release directory information. In an "opt-in school," not returning the form is a refusal to release directory information. No school wants this. Once a parent refuses to release directory information, that literally means that the student must be kept out of the the honor roll, the graduation list sent to the local newspaper and so on. No school wants to publish half the honor roll, so no school should purposefully misapply FERPA by turning an "opt out" opportunity into an "opt in." If you are encountering troubles with FERPA and directory information, ask to see a copy of the form that is sent to parents, and if you need help making sense of it, the Student Press Law Center can assist.
There is no federal "online invisibility law," either. To our knowledge, two states (New Jersey and Maine) have state statutes requiring advance parental consent before students' full names with photos can be placed onto a school-hosted, school-maintained website. But FERPA does not require this. It's possible for a state to impose confidentiality requirements more stringent than FERPA, but it's not true that FERPA forbids publishing identifying information about students online. There is in fact no differentiation in FERPA between a print and an online publication, nor does such a distinction exist generally in privacy law. Publishing is publishing, and (with the exception of those Maine and New Jersey laws) what's legal to publish in print is equally legal to publish online. (And note that even in Maine and New Jersey the law applies only to school-hosted websites, one reason of many to consider offsite hosting.)
The bottom line is that claims of FERPA confidentiality should always be viewed with skepticism, and when confronted with a claim that FERPA requires doing something that your common sense tells you is irrational, consider (1) asking "can you show me where in the law it says that, or the Department of Education has issued an interpretation saying that," and (2) calling the Student Press Law Center to get clarification.
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