SPLC voices concern over Department of Education’s proposed changes to FERPA ‘directory information’ disclosure

For the second time in three years, the U.S. Department of Education is revising its rules governing the confidentiality of student information under the Family Educational Rights and Privacy Act (FERPA).

The revision getting the most attention — both positive and negative — would broaden the universe of government employees and contractors who can obtain student data for accountability purposes, including performance audits and “longitudinal data” studies (tracking the performance of a set of students as they progress through school).

Less publicized is the Department’s proposal to revamp the concept of “directory information.” Directory information operates as an exception to FERPA confidentiality. The general rule is that personal information about students contained in school or college records is to be kept private, but institutions can — if they choose — share basic identifying information (name, year in school, major, awards, sports played, and so on), unless the student or parent specifically opts out.

Journalists often use student directories — especially at the college level, where directories often are searchable online — to locate news sources. An online directory can be a particular asset when dealing with a reticent institution that is unhelpful or obstructionist with the media.

Until now, directory information was an all-or-nothing proposition — if the school has a directory, then it’s available to anyone who asks. The DOE is proposing to change that, allowing for selective disclosure of directory information limited to “specific parties” or for “specific purposes.”

Who, you might ask, are the “specific parties” who would qualify to see the student directory? And what “specific purposes” would justify granting or withholding access to this information?

The Department hasn’t said — nor has it explained how this decision is to be made.

And that is the shortcoming in the DOE’s proposed rule on which the Student Press Law Center focused in comments filed today with the Department. (Under federal law, agencies enacting new rules must entertain public input and then reissue the rules in final form with some indication that the public input was considered. There is no exact timetable under which the DOE can be expected to respond.)

A complete copy of the SPLC’s comments is reviewable here, but the concerns can be summarized in two points:

First, if directory information is to be disclosed only selectively and not made generally available to the public, then colleges may cease putting their student directories online, which would be a significant step backward.

Second, colleges cannot be given open-ended discretion to choose which “specific parties” are eligible to receive directory information, because access to the directory could easily become yet another tool of retaliation — i.e., “The president really hated your last column, so your directory access is being pulled.” (This could go just as easily for non-journalistic users as well. If “Students Against the President’s Tuition Increase” wants access to the student directory to circulate information or recruit members, it should have access on the same terms as “Students for Higher Tuition.”)

Similarly, the idea that (as the DOE proposal says) directory information could be disclosed only for “limited purposes” should buckle the knees of any decent education journalist. Undoubtedly, some institutions would take that open-ended language as an invitation to permit directory access only for “favorable” news stories.

FERPA is already confusing enough without creating a national patchwork of “write-your-own-standard” regulations from campus to campus. The Department needs to provide clearer guidance before unleashing every school and college in America to impose its own subjective notion of who “deserves” access to students’ contact information.