[Federal Register: July 6, 2000 (Volume 65, Number 130)]
[Rules and Regulations]
[Page 41851-41863]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr06jy00-21]
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Part V
Department of Education
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34 CFR Part 99
Family Educational Rights and Privacy; Final Rule
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DEPARTMENT OF EDUCATION
34 CFR Part 99
Family Educational Rights and Privacy
AGENCY: Department of Education.
ACTION: Final regulations.
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SUMMARY: The Secretary amends the regulations implementing the Family
Educational Rights and Privacy Act (FERPA). The amendments are needed
to implement sections 951 and 952 of the Higher Education Amendments of
1998 (HEA). These amendments permit postsecondary institutions to
disclose certain information to the public and to parents of students.
DATES: These regulations are effective August 7, 2000.
FOR FURTHER INFORMATION CONTACT: Ellen Campbell, U.S. Department of
Education, 400 Maryland Avenue, SW., Washington, DC 20202-4605.
Telephone (202) 260-3887. If you use a telecommunications device for
the deaf (TDD), you may call the Federal Information Relay Service
(FIRS) at 1-800-877-8339.
Individuals with disabilities may obtain this document in an
alternative format (e.g., Braille, large print, audiotape, or computer
diskette) on request to the contact person listed in the preceding
paragraph.
SUPPLEMENTARY INFORMATION: On June 1, 1999, the U.S. Department of
Education (the Department or we) published a notice of proposed
rulemaking (NPRM) in the Federal Register (64 FR 29532). In the
preamble to the NPRM, we invited interested persons to submit comments
and recommendations, particularly on the proposed regulatory
definitions of ``crime of violence'' and ``final results'' under
Sec. 99.39 and the provisions concerning nonconsensual disclosure of
information to parents and guardians under Sec. 99.31(a)(14).
We also proposed the following major changes in the NPRM to
incorporate statutory provisions added by the HEA:
* Permit disclosure of education records to authorized
representatives of the U.S. Attorney General in specified
circumstances.
* Permit non-consensual disclosure of the final results of a
disciplinary proceeding against a postsecondary student in specified
circumstances.
* Permit non-consensual disclosure to parents and legal
guardians of students under the age of 21 of information regarding a
student's violation of laws or policies governing the use or possession
of alcohol or a controlled substance.
These final regulations have significant changes from those
proposed in the NPRM. We have provided more detail regarding the crime
of violence provision. Specifically, we have included a list of crimes
of violence and non-forcible sex offenses. We have also clarified when
results become ``final'' and what categories of information may be
disclosed under this provision. These changes are discussed in more
detail in appendix B.
Analysis of Comments and Changes
In response to the Secretary's invitation in the NPRM, 42 parties
submitted comments on the proposed regulations. In appendix B, we
analyze and summarize these comments and describe changes to the
regulations. We discuss substantive issues under the sections of the
regulations to which they pertain. Generally, we do not address
technical changes and other suggestions that the law does not authorize
us to make.
Paperwork Reduction Act of 1995
These regulations do not contain any information collection
requirements.
Assessment of Educational Impact
In the NPRM, we requested comments on whether the proposed
regulations would require transmission of information that any other
agency or authority of the United States gathers or makes available.
Based on the response to the NPRM and on our review, we have
determined that these final regulations do not require transmission of
information that any other agency or authority of the United States
gathers or makes available.
Electronic Access to This Document
You may view this document, as well as all other Department of
Education documents published in the Federal Register, in text or
portable document format (PDF) on the Internet at the following sites:
http://cfco.ed.gov/fedreg.htm
http://www.ed.gov/news.html
To use PDF you must have Adobe Acrobat Reader, which is available
for free at either of the previous sites. If you have questions about
using PDF, call the U.S. Government Printing Office (GPO) toll free at
1-888-293-6498, or in the Washington, DC area at (202) 512-1530.
You may also find these regulations, as well as additional
information about FERPA, on the following Web site:
http://www.ed.gov/offices/OM/fpco/
Note: The official version of this document is the document
published in the Federal Register. Free Internet access to the
official edition of the Federal Register and the Code of Federal
Regulations is available on GPO Access at:
http://www.access.gpo.gov/nara/index.html
(Catalog of Federal Domestic Number does not apply.)
List of Subjects in 34 CFR Part 99
Administrative practice and procedure, Education, Information,
Parents, Privacy, Records, Reporting and record-keeping requirements,
Students.
Dated: June 28, 2000.
Richard W. Riley,
Secretary of Education.
For the reasons discussed in the preamble and appendix B, the
Secretary amends part 99 of title 34 of the Code of Federal Regulations
as follows:
PART 99--FAMILY EDUCATIONAL RIGHTS AND PRIVACY
1. The authority citation for part 99 continues to read as follows:
Authority: 20 U.S.C. 1232g, unless otherwise noted.
2. Section 99.1 is amended by revising paragraph (a)(2) to read as
follows:
Sec. 99.1 To which educational agencies or institutions do these
regulations apply?
(a) * * *
(2) The educational agency is authorized to direct and control
public elementary or secondary, or postsecondary educational
institutions.
* * * * *
3. Section 99.3 is amended by adding the definition of ``Dates of
attendance'', revising the definition of ``Directory information'', and
by revising paragraph (b)(1) of the definition of ``Education records''
to read as follows:
Sec. 99.3 What definitions apply to these regulations?
* * * * *
Dates of attendance. (a) The term means the period of time during
which a student attends or attended an educational agency or
institution. Examples of dates of attendance include an academic year,
a spring semester, or a first quarter.
(b) The term does not include specific daily records of a student's
attendance at an educational agency or institution.
(Authority: 20 U.S.C. 1232g(a)(5)(A))
Directory information means information contained in an education
record of a student that would not generally be considered harmful or
an invasion of privacy if disclosed. It includes, but is not limited
to, the
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student's name, address, telephone listing, electronic mail address,
photograph, date and place of birth, major field of study, dates of
attendance, grade level, enrollment status (e.g., undergraduate or
graduate; full-time or part-time), participation in officially
recognized activities and sports, weight and height of members of
athletic teams, degrees, honors and awards received, and the most
recent educational agency or institution attended.
(Authority: 20 U.S.C. 1232g(a)(5)(A))
* * * * *
Education records.
* * * * *
(b) * * *
(1) Records that are kept in the sole possession of the maker, are
used only as a personal memory aid, and are not accessible or revealed
to any other person except a temporary substitute for the maker of the
record.
* * * * *
4. Section 99.5 is amended by revising paragraph (c) to read as
follows:
Sec. 99.5 What are the rights of students?
* * * * *
(c) An individual who is or has been a student at an educational
institution and who applies for admission at another component of that
institution does not have rights under this part with respect to
records maintained by that other component, including records
maintained in connection with the student's application for admission,
unless the student is accepted and attends that other component of the
institution.
* * * * *
5. Section 99.31 is amended by revising paragraph (a)(3), revising
paragraph (a)(8), revising paragraph (a)(9)(iii), revising paragraph
(a)(13), adding new paragraphs (a)(14) and (a)(15), and revising
paragraph (b) and the authority citation to read as follows:
Sec. 99.31 Under what conditions is prior consent not required to
disclose information?
(a) * * *
(3) The disclosure is, subject to the requirements of Sec. 99.35,
to authorized representatives of--
(i) The Comptroller General of the United States;
(ii) The Attorney General of the United States;
(iii) The Secretary; or
(iv) State and local educational authorities.
* * * * *
(8) The disclosure is to parents, as defined in Sec. 99.3, of a
dependent student, as defined in section 152 of the Internal Revenue
Code of 1986.
* * * * *
(9) * * *
(iii)(A) If an educational agency or institution initiates legal
action against a parent or student, the educational agency or
institution may disclose to the court, without a court order or
subpoena, the education records of the student that are relevant for
the educational agency or institution to proceed with the legal action
as plaintiff.
(B) If a parent or eligible student initiates legal action against
an educational agency or institution, the educational agency or
institution may disclose to the court, without a court order or
subpoena, the student's education records that are relevant for the
educational agency or institution to defend itself.
* * * * *
(13) The disclosure, subject to the requirements in Sec. 99.39, is
to a victim of an alleged perpetrator of a crime of violence or a non-
forcible sex offense. The disclosure may only include the final results
of the disciplinary proceeding conducted by the institution of
postsecondary education with respect to that alleged crime or offense.
The institution may disclose the final results of the disciplinary
proceeding, regardless of whether the institution concluded a violation
was committed.
(14)(i) The disclosure, subject to the requirements in Sec. 99.39,
is in connection with a disciplinary proceeding at an institution of
postsecondary education. The institution must not disclose the final
results of the disciplinary proceeding unless it determines that--
(A) The student is an alleged perpetrator of a crime of violence or
non-forcible sex offense; and
(B) With respect to the allegation made against him or her, the
student has committed a violation of the institution's rules or
policies.
(ii) The institution may not disclose the name of any other
student, including a victim or witness, without the prior written
consent of the other student.
(iii) This section applies only to disciplinary proceedings in
which the final results were reached on or after October 7, 1998.
(15)(i) The disclosure is to a parent of a student at an
institution of postsecondary education regarding the student's
violation of any Federal, State, or local law, or of any rule or policy
of the institution, governing the use or possession of alcohol or a
controlled substance if--
(A) The institution determines that the student has committed a
disciplinary violation with respect to that use or possession; and
(B) The student is under the age of 21 at the time of the
disclosure to the parent.
(ii) Paragraph (a)(15) of this section does not supersede any
provision of State law that prohibits an institution of postsecondary
education from disclosing information.
(b) Paragraph (a) of this section does not forbid an educational
agency or institution from disclosing, nor does it require an
educational agency or institution to disclose, personally identifiable
information from the education records of a student to any parties
under paragraphs (a)(1) through (11), (13), (14), and (15) of this
section.
(Authority: 20 U.S.C. 1232g(a)(5)(A), (b)(1), (b)(2)(B), (b)(6),
(h), and (i))
6. Section 99.33 is amended by revising paragraph (c) to read as
follows:
Sec. 99.33 What limitations apply to the redisclosure of information?
* * * * *
(c) Paragraph (a) of this section does not apply to disclosures
made to parents of dependent students under Sec. 99.31(a)(8), to
disclosures made pursuant to court orders, lawfully issued subpoenas,
or litigation under Sec. 99.31(a)(9), to disclosures of directory
information under Sec. 99.31(a)(11), to disclosures made to a parent or
student under Sec. 99.31(a)(12), to disclosures made in connection with
a disciplinary proceeding under Sec. 99.31(a)(14), or to disclosures
made to parents under Sec. 99.31(a)(15).
* * * * *
7. A new section 99.39 is added to read as follows:
Sec. 99.39 What definitions apply to the nonconsensual disclosure of
records by postsecondary educational institutions in connection with
disciplinary proceedings concerning crimes of violence or non-forcible
sex offenses?
As used in this part:
Alleged perpetrator of a crime of violence is a student who is
alleged to have committed acts that would, if proven, constitute any of
the following offenses or attempts to commit the following offenses
that are defined in appendix A to this part:
Arson
Assault offenses
Burglary
Criminal homicide--manslaughter by negligence
Criminal homicide--murder and nonnegligent manslaughter
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Destruction/damage/vandalism of property
Kidnapping/abduction
Robbery
Forcible sex offenses.
Alleged perpetrator of a nonforcible sex offense means a student
who is alleged to have committed acts that, if proven, would constitute
statutory rape or incest. These offenses are defined in appendix A to
this part.
Final results means a decision or determination, made by an honor
court or council, committee, commission, or other entity authorized to
resolve disciplinary matters within the institution. The disclosure of
final results must include only the name of the student, the violation
committed, and any sanction imposed by the institution against the
student.
Sanction imposed means a description of the disciplinary action
taken by the institution, the date of its imposition, and its duration.
Violation committed means the institutional rules or code sections
that were violated and any essential findings supporting the
institution's conclusion that the violation was committed.
(Authority: 20 U.S.C. 1232g(b)(6))
8. Section 99.63 is revised to read as follows:
Sec. 99.63 Where are complaints filed?
A parent or eligible student may file a written complaint with the
Office regarding an alleged violation under the Act and this part. The
Office's address is: Family Policy Compliance Office, U.S. Department
of Education, 400 Maryland Avenue, S.W., Washington, DC 20202-4605.
(Authority: 20 U.S.C. 1232g(g))
9. Section 99.64 is amended by revising paragraph (d) to read as
follows:
Sec. 99.64 What is the complaint procedure?
* * * * *
(d) The Office may extend the time limit in this section for good
cause shown.
10. Appendix A is added to part 99 to read as follows:
Appendix A To Part 99--Crimes of Violence Definitions
Arson
Any willful or malicious burning or attempt to burn, with or
without intent to defraud, a dwelling house, public building, motor
vehicle or aircraft, personal property of another, etc.
Assault Offenses
An unlawful attack by one person upon another.
Note: By definition there can be no ``attempted'' assaults, only
``completed'' assaults.
(a) Aggravated Assault. An unlawful attack by one person upon
another for the purpose of inflicting severe or aggravated bodily
injury. This type of assault usually is accompanied by the use of a
weapon or by means likely to produce death or great bodily harm. (It is
not necessary that injury result from an aggravated assault when a gun,
knife, or other weapon is used which could and probably would result in
serious injury if the crime were successfully completed.)
(b) Simple Assault. An unlawful physical attack by one person upon
another where neither the offender displays a weapon, nor the victim
suffers obvious severe or aggravated bodily injury involving apparent
broken bones, loss of teeth, possible internal injury, severe
laceration, or loss of consciousness.
(c) Intimidation. To unlawfully place another person in reasonable
fear of bodily harm through the use of threatening words or other
conduct, or both, but without displaying a weapon or subjecting the
victim to actual physical attack.
Note: This offense includes stalking.
Burglary
The unlawful entry into a building or other structure with the
intent to commit a felony or a theft.
Criminal Homicide--Manslaughter by Negligence
The killing of another person through gross negligence.
Criminal Homicide--Murder and Nonnegligent Manslaughter
The willful (nonnegligent) killing of one human being by another.
Destruction/Damage/Vandalism of Property
To willfully or maliciously destroy, damage, deface, or otherwise
injure real or personal property without the consent of the owner or
the person having custody or control of it.
Kidnapping/Abduction
The unlawful seizure, transportation, or detention of a person, or
any combination of these actions, against his or her will, or of a
minor without the consent of his or her custodial parent(s) or legal
guardian.
Note: Kidnapping/Abduction includes hostage taking.
Robbery
The taking of, or attempting to take, anything of value under
confrontational circumstances from the control, custody, or care of a
person or persons by force or threat of force or violence or by putting
the victim in fear.
Note: Carjackings are robbery offenses where a motor vehicle is
taken through force or threat of force.
Sex Offenses, Forcible
Any sexual act directed against another person, forcibly or against
that person's will, or both; or not forcibly or against the person's
will where the victim is incapable of giving consent.
(a) Forcible Rape (Except ``Statutory Rape''). The carnal knowledge
of a person, forcibly or against that person's will, or both; or not
forcibly or against the person's will where the victim is incapable of
giving consent because of his or her temporary or permanent mental or
physical incapacity (or because of his or her youth).
(b) Forcible Sodomy. Oral or anal sexual intercourse with another
person, forcibly or against that person's will, or both; or not
forcibly or against the person's will where the victim is incapable of
giving consent because of his or her youth or because of his or her
temporary or permanent mental or physical incapacity.
(c) Sexual Assault With An Object. To use an object or instrument
to unlawfully penetrate, however slightly, the genital or anal opening
of the body of another person, forcibly or against that person's will,
or both; or not forcibly or against the person's will where the victim
is incapable of giving consent because of his or her youth or because
of his or her temporary or permanent mental or physical incapacity.
Note: An ``object'' or ``instrument'' is anything used by the
offender other than the offender's genitalia. Examples are a finger,
bottle, handgun, stick, etc.
(d) Forcible Fondling. The touching of the private body parts of
another person for the purpose of sexual gratification, forcibly or
against that person's will, or both; or not forcibly or against the
person's will where the victim is incapable of giving consent because
of his or her youth or because of his or her temporary or permanent
mental or physical incapacity.
Note: Forcible Fondling includes ``Indecent Liberties'' and
``Child Molesting.''
Nonforcible Sex Offenses (Except ``Prostitution Offenses'')
Unlawful, nonforcible sexual intercourse.
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(a) Incest. Nonforcible sexual intercourse between persons who are
related to each other within the degrees wherein marriage is prohibited
by law.
(b) Statutory Rape. Nonforcible sexual intercourse with a person
who is under the statutory age of consent.
(Authority: 20 U.S.C. 1232g(b)(6) and 18 U.S.C. 16)
Appendix B
Analysis of Comments and Changes
Note:
The following appendix will not appear in the Code of Federal
Regulations.
Applicability of FERPA to Educational Agencies and Institutions
(Sec. 99.1)
Comments: One commenter suggested that examples of an ``educational
agency and institution'' should be provided in the regulations to
resolve any confusion caused by the definition. Another commenter asked
if the definition applies to State boards of control and governing
boards of multi-campus college and university systems.
Discussion: FERPA applies to educational agencies and institutions
to which funds have been made available under any program administered
by the Secretary. The term ``educational agency or institution'' is not
defined in the statute. Our revision clarifies that FERPA applies only
to those agencies that direct or control the public elementary or
secondary, or postsecondary educational institutions. These agencies
include local schools districts or local school boards. We have deleted
the phrase ``and performs service functions for'' because it is
confusing, and have rewritten the definition to make it clearer.
For example, we would not consider a ``State educational agency''
(SEA) to be an ``educational agency'' under FERPA unless an SEA is
authorized to direct and control public elementary, secondary or
postsecondary educational institutions. Likewise, State boards of
control and governing boards of multi-campus college and university
systems may be educational agencies under FERPA if they are authorized
to direct and control the institutions within their jurisdiction and if
they receive Departmental funding. This authority to direct and control
institutions varies according to State law.
Changes: We have revised Sec. 99.1(a)(2) to apply to an educational
agency that is authorized to direct and control public elementary or
secondary, or postsecondary educational institutions.
Definitions (Sec. 99.3)
Dates of Attendance
Comments: Several commenters supported our more detailed
explanation of the meaning of ``dates of attendance.''
Discussion: We believe that the clarification of the term ``dates
of attendance'' will provide more detailed guidance to educational
agencies and institutions because there has been some confusion over
the term.
Changes: Although no substantive changes were made to the term
``dates of attendance,'' we have created a separate paragraph for the
definition.
Directory Information
Comments: Four commenters suggested that student e-mail addresses
be added to the list of examples of records that may be disclosed as
``directory information.'' One of the commenters noted that e-mail is
the preferred method of communication at his institution, and that e-
mail is now the primary means of communication with respect to many
course-related activities. Another commenter also suggested adding
class schedules and class rosters to the list. Two commenters, however,
expressed concern about the safety of students if these types of
information were made public. Both commenters asked that we discuss the
opt-out provision because they felt many parents and students are not
aware of this provision.
One commenter noted that ``photograph'' should not be included as
``directory information'' because some photographs may be taken
involuntarily, such as student identification card photos. The
commenter contended that institutions and the Department could be
liable in an action for invasion of privacy for misappropriation of a
person's likeness. The commenters believed that this could occur where
an institution used photos in school catalogs.
Discussion: The examples of ``directory information'' listed in the
regulations are not intended to be exhaustive. Rather, the examples
illustrate the types of records that would not generally be considered
harmful or an invasion of privacy if disclosed. We agree that as
methods of communication and record management continue to evolve, it
is useful to list additional categories of information that we believe
are directory information, such as a student's e-mail address and
photograph.
We do not believe that the disclosure of student e-mail addresses
will generally be considered harmful or an invasion of privacy. We
think that a student's e-mail address is analogous to a student's
mailing address, an item already included as directory information.
The Department also has concluded that a student's photograph is a
type of identifying information, like a name and address, that would
generally not be harmful or an invasion of privacy if disclosed. Unlike
social security numbers (SSNs), we do not believe that disclosure of
photographs will allow access to other types of sensitive information
such as disciplinary files or grades.
For parents or eligible students who do not wish to have
institutions disclose photographs or any other category of directory
information, FERPA affords them with an additional protection. FERPA
requires schools to provide parents and eligible students with an
opportunity to opt out of disclosing ``directory information.''
In response to the comments we received about class rosters and
class schedules, we have decided not to include them in the
regulations. We will reevaluate our previous advice that defined these
items as ``directory information'' and further consider the concerns
raised by commenters about student safety.
In particular, we are concerned that the inclusion of class rosters
and class schedules may lead schools to disclose sensitive information.
For instance, we believe a school's disclosure of the class schedule of
a student enrolled in a special education or remedial class would be
harmful or an invasion of privacy. Additionally, many class rosters
include students' SSNs or other identification numbers; a disclosure of
this information, even if class roster were designated as directory
information, would be a violation of FERPA.
Changes: On the basis of comments that we received, we have revised
the definition of directory information by adding student e-mail
addresses. Additionally, as proposed in the NPRM, we have added as
types of directory information enrollment status and photograph.
Sole Possession Records
Comments: Many commenters noted that the proposed definition of
``sole possession records'' should be clarified. These commenters were
particularly concerned about the proposed phrases in the definition
such as ``typically maintained by the school official unbeknownst to
other individuals'' and ``information taken directly from a student.''
The commenters contended
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that a personal note that is not known to or shared with other staff
should be considered a sole possession record, even if the student
knows about the note or if the information comes from the student.
One commenter noted that the proposed definition excepted records
used to make decisions about the student. The commenter believed that
this exception could technically apply to the most minor decision about
the student. Another commenter stated that the proposed changes seemed
to define ``sole possession records'' out of existence.
Discussion: We agree that our proposed definition of ``sole
possession records'' requires modification. In the NPRM, we sought to
clarify that ``sole possession records'' do not include evaluations of
student conduct or performance. We have decided that some of the
requirements in our proposed definition could be confusing.
The main purpose of this exception to the definition of ``education
records'' is to allow school officials to keep personal notes private.
For example, a teacher or counselor who observes a student and takes a
note to remind himself or herself of the student's behavior has created
a sole possession record, so long as he or she does not share the note
with anyone else.
Changes: We have decided not to make the revisions we proposed in
the NPRM to the definition of ``sole possession records'' in Sec. 99.3.
We have clarified this definition by making minor changes.
Rights of Students (Sec. 99.5)
Comments: Two commenters asked that the provision address whether a
student has access to an admissions file after having been accepted for
admission but before enrolling.
Discussion: The amendment clarifies that a student attending an
educational institution who applies for admission to a separate
component of the institution and is rejected does not have any FERPA
rights with respect to records maintained by that separate component of
the institution. That student does not have these rights because he or
she has not attended that separate component. Similarly, a student who
is admitted to a separate component of an institution does not have
FERPA rights with respect to the records of that component until he or
she enrolls and becomes a student in attendance there. Each institution
may determine when a student is in attendance in accordance with its
own enrollment procedures.
Changes: We have revised Sec. 99.5 to clarify that a student does
not have FERPA rights with respect to records collected and maintained
by a separate component of an educational institution, including
records concerning the student's application for admission, if the
student has not actually attended the other component.
Conditions Under Which Prior Consent Is Not Required To Disclose
Information (Sec. 99.31)
Disclosures to the U.S. Attorney General (Sec. 99.31(a)(3)(ii))
Comments: A commenter expressed concern that the statutory term
``for law enforcement purposes'' is confusing and asked for
clarification of the term. A commenter asked if ``authorized
representatives of the Attorney General of the United States'' includes
only special agents in the Department of Justice or the Federal Bureau
of Investigation. This commenter also asked how this provision differs
from the exception in FERPA for disclosing education records without
consent in compliance with a subpoena. One commenter suggested that the
Family Policy Compliance Office (FPCO) work with the Attorney General
and educational associations to develop a form to document appropriate
demographic information and circumstances supporting the Attorney
General's request for education records.
Another commenter was concerned that the amendment may allow the
Attorney General to have access to the records of an individual student
who is suspected of a crime. The commenter added that this provision
should apply only to crimes committed by an institution to defraud the
Federal government or Federally funded programs. Another commenter
noted that when disclosure is made to another governmental agency
without consent, it should be made clear that the agency must protect
the information from unauthorized redisclosure.
Discussion: The statutory amendment provides for nonconsensual
disclosure of education records to authorized representatives of the
Attorney General for law enforcement purposes under the same conditions
that apply to the Secretary. In the case of the Attorney General, ``law
enforcement purposes'' refers to the investigation or enforcement of
Federal legal requirements applicable to federally supported education
programs. For example, under this exception, the authorized
representatives of the Attorney General can access education records
without consent in order to investigate or enforce Title II of the
Americans with Disabilities Act, Section 504 of the Rehabilitation Act
of 1973, the Equal Educational Opportunities Act of 1974, Title IX of
the Education Amendments of 1972, Title IV of the Civil Rights Act of
1964, or the Civil Rights of Institutionalized Persons Act (CRIPA).
Authorized representatives of the Attorney General include any employee
of the Department of Justice, including the Federal Bureau of
Investigation, so long as the employee is authorized to investigate or
enforce the Federal legal requirements applicable to federally
supported education programs.
This exception does not supersede or modify the exception in
Sec. 99.31(a)(9) for disclosure in compliance with a judicial order or
lawfully issued subpoena. Rather, this new exception permits non-
consensual disclosure of education records in connection with the
Attorney General's investigation or enforcement of Federal legal
requirements of federally supported education programs. Given the
limited nature of the allowable disclosures to the Attorney General, we
believe that the development of a form to document the Attorney
General's request for education records is not needed.
Finally, in response to the commenter seeking clarification about
redisclosure provisions, we agree FERPA's redisclosure provisions apply
to disclosures made to authorized representatives of the U.S. Attorney
General. Section 99.35(b) provides that officials who collect
information under this exception must protect the information, unless
Federal law specifically authorizes the collection of that information.
Officials must ensure that institutions do not permit personal
identification of individuals and that they destroy the records when no
longer needed. If another Federal law specifically authorizes the
collection of personally identifiable information, then the provisions
in that law govern the redisclosure and destruction of information. In
addition to the privacy protections afforded parents and students by
FERPA, the Privacy Act may afford some protections to some records
maintained by Federal agencies. The Privacy Act of 1974 (5 U.S.C. 552a)
protects records contained in a system of records maintained by Federal
agencies that are retrieved by an individual's name, social security
number or some other identifying number.
Changes: We have revised Sec. 99.31(a)(3)(ii) by removing the
phrase ``for law enforcement purposes.'' Because disclosures to the
Attorney General are subject to Sec. 99.35, those disclosures will only
be made to investigate or enforce the Federal legal
[[Page 41857]]
requirements applicable to federally supported education programs.
Disclosures to Parents of Dependent Students (Sec. 99.31(a)(8))
Comments: Several commenters requested guidance on how to determine
dependency status because the Internal Revenue Code definition of
``dependent'' is based on the student's status during the previous
year.
One commenter noted that the NPRM assumed that the use of the words
``either parent'' implies that only two individuals might be
responsible for a student's upbringing. The commenter noted that a
guardian or stepparent might also be involved along with the biological
parents.
Another commenter asked if a divorced parent might use this process
to obtain financial information in the student's record about another
parent. The same commenter also asked if the parent who claims the
student as a dependent could restrict the kind of information that the
institution may disclose to the other parent.
One commenter felt that this provision would harm victims of
domestic violence by allowing the disclosure of information in a
student's record to a domestic violence perpetrator. The commenter
worried that providing educational institutions with the discretion to
make these releases would not effectively safeguard victims of domestic
violence. The commenter suggested that institutions be prevented from
disclosing information in a student's record about one parent to
another parent who has committed domestic violence.
A commenter noted that the regulations should clarify whether
parents who obtain information about a dependent student under this
provision are subject to the limits on redisclosure of information
under Sec. 99.33 of the FERPA regulations.
Two commenters wondered whether the provision applies to students
who are legally adults and in conjunction with disclosures under
Sec. 99.31(a)(14). These commenters stated that this exception should
be limited to a dependent student who is also legally a minor. Finally,
this commenter also asked whether students may find out if their
parents have accessed their education records.
Discussion: This amendment clarifies that if a student is claimed
as a dependent for tax purposes and the individual seeking education
records meets the definition of the student's ``parent'' under FERPA,
then the institution has the discretion to disclose records to the
parent. Under FERPA, a ``parent'' is defined as ``a parent of a student
and includes a natural parent, a guardian, or an individual acting as a
parent in the absence of a parent or guardian.'' 34 CFR Sec. 99.3
(``Parent'').
We have consistently advised that, in order to determine a
student's status as a dependent for tax purposes, institutions should
look to the most recent year that the parent filed a return. For
example, if the parent of a dependent student seeks access to the
student's education records in November 1999, the institution should
review the taxpayer's 1998 tax return to determine whether the student
is a dependent.
Because eligible students--students attending a postsecondary
institution or over the age of 18--retain all rights under FERPA, an
educational agency or institution must obtain a reasonable assurance
that the student meets the requirements as a dependent for tax
purposes. If the educational agency or institution is unable to obtain
that assurance, then information from the student's education records
may not be disclosed. Once the educational agency or institution
obtains that assurance, it has the discretion to, although it need not,
disclose the student's education records to a parent of the student.
We received several comments concerning the use of this provision
by one parent to access information about another parent. In response
to these comments, we note that FERPA provides parents with broad
rights of access to their children's education records when a child is
under 18 and is not attending an institution of postsecondary
education. This provision will have a more limited application because
it is typically applied by institutions of postsecondary education.
We agree that a divorced parent could attempt to use this exception
to obtain financial information in the student's education records
about the other parent if the other parent claims the student as a
dependent. However, an institution has no obligation to disclose any
financial information about one parent to another. Thus, if a parent
claims the student as a dependent, and does not want his or her
financial information disclosed to his or her spouse or former spouse,
the parent may make that request to the institution. The institution
has the discretion not to disclose the information to the spouse or
former spouse.
Because this provision provides an institution with discretion
regarding what information, if any, it discloses to a parent, we do not
believe that institutions will release information to known
perpetrators of domestic violence. We strongly encourage victims of
domestic violence to inform institutions of postsecondary education not
to disclose any information from a student's education record to a
perpetrator of domestic violence. We believe that institutions will
understand the importance of complying with these requests. If a
student or parent does not inform an institution of postsecondary
education that a parent is a perpetrator of domestic violence, we do
not believe it would be reasonable to expect institutions to be aware
of this information. We cannot hold schools responsible for disclosures
made unknowingly to a perpetrator of domestic violence.
We agree that the regulations should clarify whether parents who
obtain information about a dependent student are subject to the limits
on redisclosure of information under Sec. 99.33.
This provision applies to education records of students who are
legally adults. The plain language of the statute applies to
``dependent students'' including students who are adults. This
provision is not related to disclosures made under the new drug and
alcohol provision, contained in Sec. 99.31(a)(14) of these regulations.
Finally, dependent students can access their own education records.
Under FERPA's recordkeeping requirements, the student's records
contain, with some exceptions, documentation of every nonconsensual
disclosure made by the institution of personally identifiable
information.
Changes: We have revised Sec. 99.31(a)(8) to clarify that it
applies to a ``parent'' as defined under FERPA. We have also clarified
in Sec. 99.33(c) that parents who obtain information about a dependent
student are not subject to these redisclosure limitations.
Disclosures in Response to Legal Actions (Sec. 99.31(a)(9)(iii))
Comments: Several commenters support a new provision that allows an
educational agency or institution to disclose education records to a
court on a nonconsensual basis, without a court order or subpoena, if a
parent or eligible student has initiated legal action against the
agency or institution and the records are necessary for the agency or
institution to defend itself.
Commenters also noted that the Department has issued letters of
finding stating that when a parent or student has filed a complaint
with a State or Federal government agency, an accrediting agency, or a
third party other than a court, an institution may disclose information
to that party without consent in order to defend
[[Page 41858]]
itself. In particular, one commenter stated that the FPCO reversed its
previous position and advised institutions that they could disclose
information from a student's education record to a third party if the
student alleged wrongdoing by the institution to that third party.
Several commenters suggested that the regulations should address these
additional instances of permissible nonconsensual disclosure. Finally,
another commenter asked if third party recipients of education records,
involved in litigation with a parent or student, may disclose the
student's education records without consent during the course of the
litigation.
Discussion: FERPA allows agencies and institutions to disclose
education records without consent to comply with a judicial order or
lawfully issued subpoena. The statute, however, requires that
institutions first must make a reasonable effort to notify the parent
or eligible student in advance of the disclosure. The purpose of this
prior notification is to give the parent or eligible student an
opportunity to object to the issuance of the judicial order or to move
to quash the subpoena.
In 1996, the Department revised Sec. 99.31(a)(9) to allow an
educational agency or institution that initiated legal action against a
parent or student to disclose relevant education records without
consent and without a court order or subpoena, provided that the agency
or institution had complied with the notification requirements
contained in Sec. 99.31(a)(9)(ii).
We also noted in the 1996 final regulations that we interpreted
FERPA to allow an educational agency or institution to infer the
parent's or student's implied waiver of the right to consent to the
disclosure of information from education records if the parent or
student had sued the institution. (61 FR 59292, 59294 (November 21,
1996). This interpretation allowed an educational agency or institution
to disclose a student's education records to a court without consent,
and without a court order or subpoena, in cases where a parent or the
student had sued the agency or institution. While we discussed this
interpretation in the preamble, we did not include it in the 1996
regulations.
For two reasons, we have concluded that an educational agency or
institution may disclose education records to a court without consent
and without a court order or subpoena if a parent or student has sued
the agency or institution. First, an agency or institution should not
be required to subpoena its own records or seek a judicial order in
order to defend itself in a lawsuit initiated by a parent or student.
Second, we believe that when a parent or eligible student sues an
agency or institution, the parent or eligible student understands that
the agency or institution must be able to defend itself. In order to
defend itself, the agency or institution must be able to use relevant
education records of the student. Thus, we believe that the parent or
eligible student waives their FERPA protections under a theory of
implied consent.
We have also concluded that the notification requirements contained
in Sec. 99.31(a)(9)(ii) are not necessary in any litigation between an
educational agency or institution and a parent or student. For this
reason, we have deleted the notification requirement in former
Sec. 99.31(a)(9)(iii) and have not included it in
Sec. 99.31(a)(9)(iii)(B) of these regulations.
The notification requirement is intended to provide a parent or
student with an opportunity to object to an order or to move to quash a
subpoena before an educational agency or institution discloses
education records in compliance with the court order or subpoena.
However, there is no such reason to require notification of a parent or
student if an educational agency or institution sues a parent or
student because the parent or student must be served with the lawsuit.
Similarly, if a parent or student sues an educational agency or
institution, the parent or student will not need to be notified of the
lawsuit.
When an educational agency or institution files a lawsuit against a
student or parent, the complaint is likely to disclose personally
identifiable information from the student's education records. It does
not make sense to require that an educational agency or institution
inform a parent or student that it plans to disclose personally
identifiable information from a student's education records in a
complaint because a parent or student cannot do anything to prevent the
complaint from being filed. Further, after a complaint has been filed,
we do not think that notification of a parent or student is necessary.
A parent or student who has been sued by an educational agency or
institution should realize that personally identifiable information
from the student's education records might be disclosed in the lawsuit.
If the parent or student wants to ensure the student's privacy, the
parent or student may petition the court to take measures to protect
the student's privacy, such as sealing the court's records.
When a student or parent files a lawsuit against an educational
agency or institution, the student or parent should realize that the
educational agency or institution might need to disclose personally
identifiable information from the student's education records in order
to defend itself. We also feel that it is overly burdensome to require
that an educational agency or institution notify the parent or student
every time that it wants to disclose personally identifiable
information from the student's education records in the lawsuit.
Notification is also unnecessary because a parent or student who sues
an educational agency or institution may petition the court to take
measures to protect the student's privacy, such as sealing the court's
records.
Several commenters asked the Department to extend the theory of
implied waiver of the right to consent to a non-litigation context.
Specifically, they alluded to the Department's ruling that when a
student has taken an adversarial position against the institution, made
written allegations of wrongdoing against the institution, and shared
this information with third parties, the institution must be able to
defend itself. While we offered this interpretation in a previous
letter of finding, we did not propose to regulate on this issue in the
NPRM. As a result, we cannot include these guidelines in our final
regulations.
Finally, in response to the commenter who asked if third party
recipients of education records may release student education records
if the student or parent sues the third party, we did not address this
issue in the NPRM. Thus we cannot regulate on this issue at this time.
Changes: We have added Sec. 99.31(a)(9)(iii)(B) which allows an
educational agency or institution to disclose education records to a
court without consent, and without a court order or subpoena, if a
parent or eligible student has initiated legal action against an
educational agency or institution. We have also deleted the
notification requirement in Sec. 99.31(a)(9)(iii)(A) so that an
educational agency or institution that has initiated legal action
against a parent or student does not have to notify the parent or
student before disclosing the student's relevant education records.
Disclosure of the Final Results of a Disciplinary Proceeding
(Sec. 99.31(a)(13), Sec. 99.31(a)(14), and Sec. 99.39)
Comments: We received numerous comments about these provisions. The
comments fell into four general categories: scope of the provision; the
meaning of its terms; its effective date;
[[Page 41859]]
and the applicability of FERPA's redisclosure provisions. Specifically,
with respect to the second category, commenters sought clarification of
the terms ``alleged perpetrator,'' ``crime of violence,'' ``nonforcible
sex offense,'' and ``final results.''
Scope of the Provision
Commenters asked whether postsecondary institutions are now
required to disclose the final results of a disciplinary proceeding
conducted against an alleged perpetrator of a crime of violence or a
non-forcible sex offense or whether the disclosure is discretionary.
Commenters added that many public institutions are subject to State
open records laws that require the release of records unless that
release is contrary to Federal law. Thus, one commenter contended that
an institution's discretion to release the final results of specified
disciplinary proceedings is an illusion because the amendment
eliminated the protection that FERPA had provided against disclosure.
Some commenters asked whether institutions may disclose the final
results of a disciplinary proceeding to anyone or to just the victim.
One commenter also noted a change to Sec. 99.31(a)(13). He noted that,
as proposed, Sec. 99.31(a)(13) would have limited the disclosure of
final results to proceedings in which the institution determines that
the student committed the violation. The commenter noted, however, that
the Department requires notification of the final results of a
disciplinary proceeding, regardless of the outcome, to the victim in a
sexual assault case.
Definitions: ``Alleged Perpetrator''
We received many comments about the definitions used in this
provision. Many comments concerned the term ``alleged perpetrator of a
crime of violence.'' These commenters noted that this term is
confusing. Several commenters asked who is responsible for making the
determination that a student is an ``alleged perpetrator'' of a crime
of violence. Specifically, one commenter wondered whether the
complainant, the requester, or the institution determines that a
student is an ``alleged perpetrator.''
Commenters also asked when a student becomes ``an alleged
perpetrator.'' One commenter wondered if this determination is made
when formal criminal charges are brought or sometime earlier in the
criminal process. This commenter also wondered what would happen if the
charges were dropped or if the student were found not guilty in a court
of law. Several other commenters felt that a student should only become
an ``alleged perpetrator'' of a crime of violence after formal criminal
charges have been brought. In contrast, some other commenters suggested
that Congress intended to cover disciplinary charges whether or not
police or other law enforcement officials are involved. They added that
the institution must determine whether a student is an ``alleged
perpetrator'' of a crime of violence through the institution's
disciplinary process.
Finally, some commenters expressed concern about libel or slander
claims if institutions label a student an ``alleged perpetrator of a
crime of violence,'' because institutions do not use the terms
``alleged perpetrator'' or ``crime of violence'' in their disciplinary
codes.
``Crime of Violence''
Many commenters suggested that the regulations should identify more
specifically what offenses constitute ``crimes of violence.'' For
example, educational institutions asked whether petty property crimes,
technical batteries, and other offenses are crimes of violence. College
administrators indicated that they must be free to exercise discretion
in categorizing incidents as ``crimes of violence'' without fear of
losing institutional funding. Another commenter liked our proposed use
of the Federal Bureau of Investigation's (FBI) Uniform Crime Reporting
Program definitions.
One commenter asked that the Secretary remove confusing language
and permit the disclosure of information for any student who commits a
violation of institutional policies involving behavior that includes an
element of violence or physical force. This commenter suggested that
the term ``felony'' (which is used in the statutory definition of
``crime of violence'') should be replaced with ``other serious
offense.'' This commenter also asked that we provide examples of what
constitutes a ``serious'' offense. Finally, this commenter asked that
the Department recognize the difference between criminal prosecutions
and student disciplinary proceedings by changing the term ``student
charged'' to ``student found responsible.''
``Non-Forcible Sex Offense''
Many commenters wondered whether the new disclosure provisions
apply to disciplinary proceedings against alleged perpetrators of a
``non-forcible sex offense.'' The commenters were concerned that if the
regulations do not apply to non-forcible sex offenses, postsecondary
institutions could continue to keep proceedings secret, even matters
involving such offenses as date rape. In short, these commenters were
concerned that the term ``crime of violence'' may not encompass
offenses such as date rape and asked that we include and define the
term ``non-forcible sex offense.'' One commenter contended that,
without a clear definition of ``nonforcible sex offense,'' the
institution would be able to manipulate its disciplinary code in order
to shield offenses from disclosure.
A commenter stated that the regulations did not define or include
the term ``non-forcible sex offense'' because such an offense is
considered a ``crime of violence.'' Another commenter noted that the
FBI's Uniform Crime Reporting (UCR) Program defines non-forcible sex
offense as statutory rape and incest. However, one commenter contended
that Congress did not intend the term ``non-forcible sex offense'' to
include only statutory rape and incest.
``Final Results''
Many commenters stated that the regulations should define when a
result is final. They noted that at many institutions a student has a
right to appeal or seek review of a decision before a result is truly
final. The commenters suggested that ``final results'' should be
defined as that point when all internal institutional appeals have been
exhausted. However, another commenter felt that ``final results''
should be defined earlier in the disciplinary process so that the
public can be informed if there is institutional favoritism in the
appeals process.
Several commenters also noted that the proposed definition of
``final results'' was unclear because it did not offer sufficient
guidance as to the type of information that may be released. Because
the proposed definition of ``final results'' includes disclosure of the
violation committed, these commenters specifically requested that we
define the term ``violation committed.''
One of these commenters contended that the term ``violation
committed'' calls for a plain language description of the behavior that
formed the basis of the disciplinary violation. Another commenter
suggested that ``violation committed'' should be defined to include the
nature of the offense, including both the institution's categorization
or description of the offense and any criminal offenses to which that
categorization corresponds, and the date, time and location of the
offense. If the term ``violation committed'' is not defined, commenters
believed that institutions could release
[[Page 41860]]
vague summaries of offenses, such as describing an assault as
``disorderly behavior.''
Commenters also noted that the definition of the term ``final
results'' calls for the ``sanction imposed.'' Consequently, these
commenters requested that we define the term ``sanction imposed'' to
include a description of the disciplinary action, the date of
imposition and duration, and definitions of any terms used, such as
`disciplinary probation.'
Several commenters had suggestions about the methods that
institutions should use to disclose the final results of disciplinary
proceedings. The commenters suggested that we should permit disclosure
of the final determination, or the updated crime log required under 20
U.S.C. 1092(f), rather than requiring institutions to create a new,
one-line record that constitutes final results. The commenters stated
that any crime of violence or non-forcible sex offense should have a
related entry on the campus crime log, including the nature, date,
time, and general location of each crime and the disposition of the
complaint, if known. (20 U.S.C. 1092(f)(4)(A)(i) and (ii)). One
commenter noted that new information pertaining to a crime or offense,
such as the final results of a disciplinary proceeding, must be
included in the campus crime log within two business days. (20 U.S.C.
1092(f)(4)(B)(ii)). He stated that the regulations should also clarify
that everything other than the final results of the disciplinary
process, such as transcripts of proceedings and other documents,
remains protected by FERPA as part of a student's education record.
In contrast, one commenter argued that the statute clearly defines
final results. The commenter stated that the statute lists the types of
information that may be disclosed as part of the final results of the
disciplinary proceeding--the student's name, the violation committed,
and any sanction imposed. The commenter noted that any amendment to
FERPA that takes away the privacy rights of students should be
construed narrowly to protect the intent of the law. Under this
reasoning, he stated, the proposed regulatory language should not be
modified.
Redisclosure
Some commenters asked that the regulations clarify that
redisclosure limitations in Sec. 99.33 do not apply to disclosures
under Sec. 99.39. Because the statute provides that final results may
be disclosed to anyone, these commenters reasoned that limitations on
redisclosure are inappropriate.
Effective Date
Several commenters asked us to address the issue of the effective
date of the regulations. In particular, they asked us if the statute
applies to determinations of the final result reached after October 7,
1998, or to requests dated after October 7, 1998. These commenters
explained that students subject to disciplinary proceedings conducted
prior to October 7, 1998 had a legitimate belief that Federal
confidentiality laws protected their education records generated during
these proceedings. The commenters requested that we continue to ensure
that these records remain confidential. In contrast, one commenter felt
that the statute should apply to any requests dated after October 7,
1998, regardless of when the records were created. Finally, one
commenter asked the Secretary to clarify how institutions should handle
requests that were made after October 7, 1998, but before the effective
date of the final rule.
Discussion: Scope of the Provision
This new exception to the prior written consent rule does not
require postsecondary educational institutions to disclose the final
results of disciplinary proceedings to anyone. The disclosure is
permissive. Thus, the effect of the amendment is that institutions are
now free to follow their own policies regarding disclosure of this
information. Institutions should consult with their own counsel or
State officials regarding whether their State open records law requires
disclosure of the final results of disciplinary proceedings in which a
student is found to be an alleged perpetrator of a crime of violence.
In response to the commenter who was concerned about State open records
laws that require disclosure, FERPA does not prevent that disclosure.
Inadvertent Deletion
In section 99.31(a)(13) of the NPRM, we inadvertently deleted a
provision that permits postsecondary institutions to disclose to the
victim the results of a disciplinary proceeding against the alleged
perpetrator of a crime of violence, regardless of the outcome. We have
reinstated that provision, designated as Sec. 99.31(a)(13). Sections
99.31(a)(13) and 99.31(a)(14) differ significantly. Victims may be
informed of the final results of a disciplinary proceeding against an
alleged perpetrator under Sec. 99.31(a)(13), regardless of the outcome
of that proceeding. In contrast, under Sec. 99.31(a)(14), the
institution may disclose to the public the final results of a
disciplinary proceeding only if it has determined that:
(1) The student is an alleged perpetrator of a crime of violence or
non-forcible sex offense; and
(2) The student has committed a violation of the institution's
rules or policies with respect to the allegation.
Definitions: ``Alleged Perpetrator'' and ``Crime of Violence''
We have reviewed the numerous comments we received on these terms.
In particular, we have considered the comments from school officials
that contend that student codes of conduct are not generally written
using criminal terms. We agree that the statutory definition of ``crime
of violence,'' as defined in 16 U.S.C. 18, is difficult to apply.
Therefore, we have re-written the provision to define ``crime of
violence.'' The definition consists of an all-inclusive list of
``crimes of violence.'' This list consists of:
Arson
Assault offenses
Burglary
Criminal homicide--manslaughter by negligence
Criminal homicide--murder and nonnegligent manslaughter
Destruction/damage/vandalism of property
Kidnapping/abduction
Robbery
Forcible sex offenses.
We define these crimes according to the Federal Bureau of
Investigation's Uniform Crime Reporting (UCR) Handbook (1984) and the
UCR Reporting Handbook: National Incident-Based Reporting System
(NIBRS), Volume I (Data Collection Guidelines) (1996). We have listed
these definitions in appendix A following these regulations. We have
used the same definitions of murder and nonnegligent manslaughter,
manslaughter by negligence, forcible sex offenses, non-forcible sex
offenses, robbery, aggravated assault, burglary and arson, that are
used in the Student Assistance General Provisions, 34 CFR Part 668,
because institutions of postsecondary education already are familiar
with these definitions. We have taken from the UCR Reporting Handbook:
NIBRS the definitions for those crimes of violence that are not defined
in the Student Assistance General Provisions regulations. Copies of
these UCR publications are available from: Programs Support Section,
Criminal Justice Information Services Division, Federal Bureau of
Investigation, 1000 Custer Hollow Road, Clarksburg, West Virginia
26306-0154.
[[Page 41861]]
We believe that this list will be easier to apply for institutions
and that a standard set of definitions will allow for more uniform
application. In response to the commenter who wondered if a petty
property crime or a technical battery would constitute a crime of
violence, those incidents are crimes of violence if they fall within
the definitions of one of the crimes listed above.
We also agree with commenters that the term ``alleged perpetrator''
is not clear, and should be clearly defined. We define an ``alleged
perpetrator'' as a student who is alleged to have committed acts that
would, if proven, constitute any of the offenses that we have stated
are crimes of violence or non-forcible sex offenses. As this definition
suggests, we believe that institutions will have to use their judgment
on a case-by-case basis about whether certain alleged acts constitute a
crime of violence or non-forcible sex offense.
In order to determine if someone is an alleged perpetrator,
institutions should look at allegations made as part of the
disciplinary proceeding. These allegations can be made by a victim, a
third-party witness, or by the institution. These allegations can be
made at any time during the disciplinary proceeding, beginning from the
time that an initial complaint or a charge is filed, until the final
result is reached. This disciplinary process is not related to criminal
proceedings. The institution does not need to refer the matter to the
police or await any criminal proceedings in order to consider a student
an alleged perpetrator of a crime of violence or non-forcible sex
offense.
In response to the commenters who expressed concern about possible
defamation claims if an institution labels a student ``an alleged
perpetrator of a crime of violence,'' we note that the provision merely
calls for the school to determine that a student has been alleged to
have committed a crime of violence. In short, such a determination does
not mean that the student committed a crime of violence, but that an
allegation was made that the student engaged in the type of behavior
that rises to the level described in the definitions of a crime of
violence. We do not believe that a school can be found liable on a
defamation claim for this type of determination.
``Non-Forcible Sex Offense''
We agree with the commenters who argued that Congress intended to
cover the crimes of date rape and acquaintance rape. However, these two
crimes fall within the statutory definition of ``crime of violence,''
specifically within the meaning of ``forcible sex offense'' as defined
in the UCR Reporting Handbook: NIBRS. We have clarified that the
definition of ``an alleged perpetrator of a crime of violence''
includes forcible sex offenses such as date rape and acquaintance rape.
However, in an effort to avoid any confusion caused by not including a
definition of ``non-forcible sex offense,'' we also define the term
``alleged perpetrator of a non-forcible sex offense'' in the
regulations. ``Alleged perpetrator of a non-forcible sex offense'' is
defined as ``a student who is alleged to have committed acts that, if
proven, would constitute statutory rape or incest.'' This definition is
based on the FBI's definition of ``non-forcible sex offense.'' The
definition is listed in appendix A, which follows these regulations.
``Final Results''
The Department is concerned about violence on campus. We recognize
the need for students to be aware of how an institution responds to
these incidents. Therefore, we have defined ``final results'' to allow
institutions to disclose the results of disciplinary proceedings before
all internal reviews and appeals have been exhausted. We define ``final
results'' to mean a decision or determination, made by an honor court
or council, committee, commission, or other entity authorized to
resolve disciplinary matters within the institution. We believe that
this definition will benefit students who have been victims of violent
crimes and non-forcible sex offenses. Institutions will not be able to
claim that FERPA allows them to release results of disciplinary
proceedings only after all internal reviews and appeals have been
exhausted.
We agree that the regulations should provide additional guidance
regarding how much and what type of information may be provided in the
final results. We have defined the term ``violation committed'' and
``sanction imposed'' in order to help institutions understand what
information may be released. We define ``violation committed'' as the
institutional rules or code sections that were violated and any
essential findings supporting the institution's conclusion that the
violation was committed. We agree with the commenter that ``sanction
imposed'' should be defined as a description of the disciplinary action
taken by the institution, the date of its imposition, and its duration.
We believe that institutions generally will be able to disclose the
final results of the disciplinary proceeding without creating new
records. An institution may disclose its letter of final determination
provided that the institution redacts all personally identifiable
information in the letter except those portions that contain the
student's name, the violation committed, and the sanction imposed. In
other words, the institution must not disclose, without consent, any
other portions of the letter of final determination that contain
personally identifiable information that is directly related to the
accused student or to any other student. If, however, the letter of
final determination does not contain the violation committed or the
sanction imposed, then the institution has discretion to create a new
document in order to disclose this information.
Several commenters suggested that the final results of disciplinary
proceedings be released in the form of an updated crime log. Because
the release of this information is discretionary under FERPA, we agree
with these commenters that the release of an existing crime log, as
required by the campus security regulations (34 CFR Sec. 668.46(f)),
may be a satisfactory way to disseminate this information. It is worth
noting that a crime log contains any crime reported to campus police or
a campus security department, rather than only crimes of violence or
non-forcible sex offenses.
The release of a campus crime log, however, will not disclose some
information that is permitted to be disclosed under FERPA.
Specifically, a campus crime log does not contain the names of alleged
perpetrators of crimes of violence or non-forcible sex offenses.
Rather, a campus crime log includes the nature, date, time and general
location of each crime and the disposition of the complaint, if known.
(20 U.S.C. 1092(f)(4)(A)(i) and (ii).) Final results that can be
disclosed under FERPA, however, concern the name of the student, the
disciplinary violation that the student committed, and the disciplinary
sanction imposed on the student.
Redisclosure
The redisclosure limitations in Sec. 99.33 do not apply to
disclosures made under Sec. 99.31(a)(14) because information about the
final results of a disciplinary proceeding concerning a crime of
violence or a non-forcible sex offense may be disclosed to anyone,
including the media. Thus, we have revised Sec. 99.33.
[[Page 41862]]
Effective Date
This amendment to FERPA was effective October 7, 1998. We interpret
the effective date to mean the date that an institution reaches its
final result in a disciplinary proceeding. This result preserves the
expectation of students regarding confidentiality of disciplinary
proceedings occurring before the effective date of the statute. Thus,
institutions may disclose the final results of a disciplinary
proceeding under Sec. 99.31(a)(14) so long as the final results are
reached on or after October 7, 1998.
With regard to requests for education records received between
October 7, 1998, and the effective date of these final regulations, we
will not find that institutions violated FERPA for disclosing the final
results of disciplinary proceedings, regardless of when these results
were reached. We previously had interpreted the effective date as being
the date an institution received a request for records, rather than the
date that an institution reached its final results. We will not find
that institutions that followed our advice regarding this issue
violated FERPA.
Changes: We have reinserted Sec. 99.31(a)(13) in the regulations.
This provision permits institutions of postsecondary education to
disclose to the victim the final results of a disciplinary proceeding
conducted against the alleged perpetrator of a crime of violence or a
non-forcible sex offense regardless of the outcome of the proceedings.
We have explained that an alleged perpetrator of a crime of violence or
non-forcible sex offense should be determined by looking at the
allegation that a student has committed a crime of violence or non-
forcible sex offense. We have revised the definition of crime of
violence to reflect an all-inclusive list of crimes. The list includes
forcible sex offenses, such as date rape and acquaintance rape, and
non-forcible sex offenses.
We have revised the definition of ``final results.'' The definition
means a decision or determination, made by an honor court or council,
committee, commission, or other entity authorized to resolve
disciplinary matters within the institution. We have also defined
``violation committed'' and ``sanction imposed.''
We have clarified that the redisclosure provisions do not apply to
disclosures made in connection with a disciplinary proceeding under
Sec. 99.31(a)(14).
We have also explained that only final results determined on or
after October 7, 1998, may be disclosed without consent under
Sec. 99.31(a)(14).
Disclosures to Parents About Drug and Alcohol Violations
(Sec. 99.31(a)(15))
Comments: Many commenters were confused that Sec. 99.31(a)(15) did
not address a student's status as a dependent. They asked that we
address the relationship between this exception and Sec. 99.31(a)(8).
One commenter felt that using 21 as a dividing line will result in
students being treated differently depending on their age. For example,
if the institution disciplines the same student before and after the
student turns 21, the institution may only disclose the earlier
disciplinary determination. The commenter also believed that parents
will not understand why they may be notified in the first instance and
not in the second.
Another commenter pointed out that is it not clear how an
institution should determine a student's age under the exception. The
commenter wondered whether the institution should use the student's age
when the incident occurs, when the institution determines that a
disciplinary violation occurs, or when the institution makes a
disclosure. He argued that the institutions should be able to disclose
records to parents about violations if the student is under 21 at the
time of the drug or alcohol incident.
Another commenter stated that the statute permits disclosure
without consent to a ``parent'' or ``legal guardian'' but noted that
the FERPA regulations define ``parent'' to include legal guardian, as
well as an individual acting as a parent in the absence of a parent or
a legal guardian. The commenter asked that the Department clarify the
regulations by using only the term ``parent,'' because use of ``legal
guardian'' is confusing and repetitive. Alternatively, he contended
that the regulations should use a special, narrower term such as
``natural or adoptive parent'' because FERPA is a privacy statute and
should be construed narrowly. The commenter stated that the Department
should also change the definition of ``parent'' in Sec. 99.3
specifically to include individuals who adopt children.
Another commenter requested that we clarify that the statute does
not apply to determinations of disciplinary violations that were made
before October 7, 1998. Similarly, a commenter questioned what rule
would apply to disclosures made under this exception after the passage
of the statute and prior to the promulgation of these regulations.
A commenter stated that this provision, like the statute, is
unclear because the term ``disciplinary violation'' is not defined. The
commenter stated that without a regulatory definition of ``disciplinary
violation,'' FERPA will not be implemented uniformly throughout the 50
states, as required under 20 U.S.C. 1232g(c), and will vary based on
the whims of campus administrators.
A commenter asked if there is any significance in using the term
``determination'' in Sec. 99.31(a)(15), while using the term
``disciplinary proceeding'' in Sec. 99.31(a)(14). He also asked if an
institution must make a determination in a disciplinary proceeding, or
if an institution can make a determination that there has been a
violation of its disciplinary code in some other way. For example, the
commenter wondered if an institution could determine that a
disciplinary violation has been committed and send information to a
parent under this provision if a video camera simply recorded an
intoxicated student walking around campus. The commenter expressed
concern that the threshold could be set so low as to eliminate the
phrase ``disciplinary violation'' from the statute.
Finally, a commenter asked us to explain that students can find out
when their parents have been notified of a drug or alcohol violation.
Discussion: This provision applies only to students under the age
of 21 at the time of the disclosure to the parent. We clarify that an
institution may disclose information under this exception without
regard to whether the student is a dependent for tax purposes.
We have concluded that the student must be under 21 years of age at
the time that the institution discloses to the student's parent that
the student has committed a disciplinary violation with respect to
alcohol or drug use or possession. We reach this conclusion because the
statute links the institution's option to disclose with the age of the
student and the institution's determination that the student committed
a disciplinary violation. The Secretary has no statutory authority to
allow institutions to disclose alcohol and drug violations of students
after they have turned 21.
We agree with the commenter that the use of the term ``legal
guardian'' is repetitive and unnecessary. The statutory term ``parent
and guardians'' is covered by our regulatory definition of the term
``parent.'' Likewise, it would be redundant to include the term
``adoptive parents.''
In response to the comment about disciplinary violations occurring
before October 7, 1998, we conclude that
[[Page 41863]]
institutions are not permitted to disclose any determinations of
disciplinary violations reached before October 7, 1998. This conclusion
protects the legitimate expectation of confidentiality that students
had regarding drug or alcohol disciplinary violations before October 7,
1998.
With regard to institutional disclosures to parents under this
exception occurring after October 7, 1998, but prior to the
promulgation of these final regulations, we will not find that
institutions violated FERPA so long as the disclosure was based on a
reasonable interpretation of the statutory amendment.
We recognize that there is confusion over the terms
``determination'' and ``disciplinary violation.'' Commenters sought
guidance on the meanings of these terms and the responsibilities of
postsecondary institutions under this exception.
We note that an institution may make a determination under this
exception without conducting any sort of disciplinary proceeding. We
reached this conclusion for two reasons. First, we compared the
language used by Congress in this exception and the ``crime of
violence'' exception. The ``crime of violence'' exception permits the
disclosure of final results of a disciplinary proceeding conducted by
the institution. This statutory provision clearly indicates that,
before making any disclosures under this exception, an institution must
first conduct some type of hearing or proceeding.
However, the drug and alcohol provision is worded very differently.
That statutory provision does not use the term ``disciplinary
proceeding,'' and we believe Congress' choice of words was deliberate.
Therefore, we do not have the authority to require schools to conduct a
disciplinary proceeding in order to determine that a student has
committed a disciplinary violation with respect to drug or alcohol use.
Institutions may establish and follow their own procedures for making
these types of determinations.
The limited nature of this disclosure supports our interpretation
that this exception does not require institutions to conduct any sort
of formal disciplinary proceeding. This exception permits disclosures
only to parents. In contrast, disclosures made in accordance with
Sec. 99.31(a)(14) can be made to the public. Thus, we believe that
Congress intended to make it easier for institutions to inform parents
of drug and alcohol violations by allowing the institution to release
the information without conducting a formal disciplinary hearing.
Although we recognize that commenters sought a definition of the
term ``disciplinary violation,'' we decline to define this term. We
recognize that institutions have different codes of conduct. If we
imposed a specific standard for a ``disciplinary violation,'' we would
be placing a large burden on institutions to conform their codes of
conduct to our regulatory definition. We will not impose such a burden.
In response to the concern that an institution could set the
threshold so low as to read the phrase ``disciplinary violation'' out
of the statute, we do not believe that institutions will act
irresponsibly when making disclosures under this provision. We also
emphasize that this disclosure, as with other permissible disclosures
under Sec. 99.31(a), is discretionary. Furthermore, the statutory
amendment also provides that this new exception does not supersede any
provision of State law that prohibits an institution of postsecondary
education from making the permitted disclosure.
Finally, FERPA does not require institutions to notify students
each time the institution discloses information from their education
record. Institutions, however, are required, with some exceptions, to
maintain a record of each disclosure of personally identifiable
information from an education record along with that education record.
Students at postsecondary institutions have the right under FERPA to
access and view their own education records which should include a
record of any disclosures made. Postsecondary students who wish to know
if their parents have been notified of drug or alcohol violations
should seek access to their own education records.
Changes: We revised Sec. 99.31(a)15 by removing the term ``legal
guardian.'' We have also specified that a student must be less than 21
years of age when the institution discloses to the parent that the
institution has determined that a disciplinary violation has occurred.
[FR Doc. 00-17058 Filed 7-5-00; 8:45 am]
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