Arizona legislator proposes state-level penalties for violating FERPA

ARIZONA — An Arizona lawmaker wants to impose state-level penalties to schools that release student information that’s illegal under a federal student privacy law. 

Republican State Sen. Kimberly Yee, R-Phoenix, has proposed monthly state funding cuts by as much as 10 percent for any school that the state deems in violation of the federal Family Educational Records and Privacy Act. It is the first such bill of its kind in any state.

The bill unanimously passed the Senate’s education committee last week and could come up for a vote as early as Thursday.

FERPA prohibits the disclosure of student educational records, but allows the release of what it terms “directory information,” information like names, addresses and phone numbers. FERPA does not compel schools to release directory information, the release of which is governed by state public record laws.

Schools that violate the federal law can lose all federal funding, although no school has ever been penalized financially. 

Under the proposed legislation, a person could file a complaint alleging a FERPA violation with the principal of a charter school or the superintendent of a school district. If the complaint is not satisfactorily resolved within 60 days, the person can then file a complaint with the state’s Department of Education, which will trigger funding cuts until the problem is resolved.

Yee said the legislation reflects several years of personal research into “where the problem really exists,” and is designed to instruct individuals who suspect a violation as to how they can report it.

“FERPA is something I’ve seen a lot but not a lot in respect to the penalties in place,” she said. “There really aren’t a number of provisions in our Arizona statute that say what a person is to do to report a violation.”

Yee, chair of the education committee, said she realized the need for tighter laws when an executive of the Arizona Dental Association shared with her lists of student directory information he had obtained from elementary schools. The students were on Medicaid, she said, and mobile dental units were targeting non-English-speaking welfare recipients.

“He shared with me that he just makes friends with the school nurse and school principal,” Yee said. “The specific problem is when list gets out … The dental units are doing work that is considered extensive — full-on root canals — that is not necessarily authorized by the parent.”

David Cuillier, director of University of Arizona’s journalism school and president-elect of the Society of Professional Journalists, called the bill “ludicrous” and “one of the worst” he’s ever seen. SPJ and other media groups, including the Student Press Law Center, have argued that schools routinely use FERPA to block access to records that ought to be public.

“What’s the state doing enforcing federal law? That’s just crazy,” Cuillier said. “FERPA’s a mess, and if the feds can’t even get it right, how are the state and local school districts going to handle it?”

Adding additional penalties for violations and allowing a state to determine what qualifies will open a can of worms and prompt schools to take an even more secretive approach, Cuillier said. He said an easy fix to Yee’s problem, rather than amending the existing federal law, would be to write a separate law that allows schools to deny the release of directory information.

“All [the bill] is gonna do is cause our schools in Arizona to become more secretive than ever,” he said. “Your principals? They’re just gonna keep everything secret? I would. I think they need to scrap it and go back to the drawing board.”

Yee said while she hasn’t heard from any schools specifically, feedback from education community — particularly the Arizona School Administrators Association and the Arizona School Boards Association — has been positive.

Sabrina Vasquez, the legislative liaison for the ASAA, said the organization has not taken a stance on the legislation. Geoff Esposito, governmental relations analyst for the ASBA, acknowledged mobile dentist units had performed “unnecessary” dental procedures on children who received Medicaid dollars but said the organization has remained neutral on the bill.

Yee emphasized that other businesses will still be able to court schools and market to students as long as an “educational link to the sale of those products” exists, such as those involved with class rings and yearbooks.

“I’d imagine this would be a bipartisan,” she said. “It’s about protecting student’s information. When it goes outside of the campus for business reasons, we have to be careful.”

By Daniel Moore, SPLC staff writer. Contact Moore by email or at (703) 807-1904 ext. 127