Federal privacy rules face review
in the wake of Va. Tech
shootings
With the first anniversary of the Virginia Tech shootings approaching, the federal Education Department is proposing regulations that will give school administrators more freedom in sharing student information when the safety of students is at risk.
The Family Educational Rights and Privacy Act (FERPA), which protects the privacy of students' records, was last updated in 2000. FERPA does not apply to medical records in which treatment is involved.
FERPA has received scrutiny in the wake of the shootings at Virginia Tech by those concerned about whether FERPA gives college officials enough latitude to report their fears about mentally ill students.
Last April 16, Virginia Tech student Seung-Hui Cho killed 32 people and wounded many more before killing himself.
A report released last August by the Virginia Tech Review Panel, a state-appointed body assigned to review the incident, detailed Cho's history of mental problems and behavior, including diagnoses of depression and an anxiety disorder, therapy, and incidents of stalking and harassment, as well as disturbing behavior in the classroom. In 2005, a Virginia special justice had declared Cho mentally ill.
The report criticized university officials for failing to share information that would have shed light on the seriousness of Cho's problems and might have prevented the deaths.
According to a federal report on the Virginia Tech shootings, college instructors and administrators encountered "confusion and differing interpretations" about when it was appropriate to provide information about Cho. The report also found uncertainty about what kind of liability campus officials might face if they had indeed violated FERPA by revealing that student's record.
The Education Department proposal, announced March 24, attempts to give school administrators more clarity and leeway in sharing information about a student, without getting the student's prior approval, when they believe the health and safety of the student or others might be in jeopardy.
But according to Leanne Shank, general counsel at Washington and Lee University, the proposal will help only if students and school administrators fully understand it.
"[The proposed rule] does provide greater direction to those institutions who might have been a little bit confused," said Shank. "But it's only going to be as clear as the university uses it to educate the community and the decision makers who determine that a student may pose a health or safety risk."
In the proposal, the Education Department specifies that there must be an "articulable and significant threat" to student safety that can be prevented by disclosure of information.
The proposal makes clear that universities won't be held liable for making a good faith decision to protect students.
Yet Shank said that most university officials should know that even now, FERPA cannot do much to punish schools for disclosing student records.
"I think liability and managing risk in any university or corporation is something they keep in mind," said Shank. "However, I think the fear of being held liable under FERPA is misguided."
According the Shank, there's no private liability for individuals who violate FERPA. The only punishment from the government is cutting the federal funding of an institution that has a pattern or practice of disclosures and FERPA violations.
While Shank realizes the severe effect such a loss would have on large research institutions, she said that it rarely happens.
Shank said that for that reason, among others, W&L tends to err on the side of disclosure.
Yet some still believe that student records should not be shared and view the new regulations as an intrusion on privacy.
Laura King, a junior at W&L, grew up in Blacksburg, home of Virginia Tech. King said about one third of her high school graduating class attends Virginia Tech and that one of the students killed in the shootings was a friend of hers.
But she does not support giving university officials more leeway to disclose student information.
"Any time that tragedies like the Tech shootings happen, it's easy to look back and say we should have seen it coming," said King. "But in reality, there are plenty of people that have problems like [Cho's] that haven't killed 32 people."
The Education Department invites the public to comment on the proposed rules by May 8. According to Shank, the regulations won't become final for a year or so.
To submit comments and to view the proposed FERPA rules, visit the March 24 Federal Register online.
Produced by
Washington and Lee
journalism students.
Lead Supervisors:
Prof. Brian
Richardson
Prof. Phylissa
Mitchell
Editing supervisor:
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Technical supervisor: Michael Todd