FERPA does not apply to Deceased Students

I find that University transcripts are an underappreciated resource for historians.  If you’re looking to make claims of influence from one thinker to the next, or to identify the point in someone’s life when s/he first started thinking seriously about some idea, then it should come as no surprise that one of the most useful places to start might be with that person’s schooling.  And especially in the history of ideas, there are plenty of accounts of a person studying under a particular teacher, either building upon their mentor’s ideas or violently reacting against it.  There are accounts of people deciding to change their career path because of their experiences (good and bad) at University.  It would seem like knowing what classes someone took while they were at University might be helpful.  But a lot of historians I’m mentioned this to presume that they’re not permitted to be used.

In my own dissertation research (a part of which that is included in Trying Biology) the graduate school transcript of one of the most important people who I look at  gives me a vital piece of evidence to understanding the development of the high school biology curriculum.  Previous scholars had argued that George Hunter (as well as other pioneers in this curriculum) developed a biology curriculum that did away with the botany/zoology dichotomy once they began teaching in New York City schools.  By looking at the courses that Hunter took at the University of Chicago (before he moved to New York) I was able to show that something like this synthesis was already evident in the courses he chose to take (and by comparing those with the transcripts of other students in the Department at the same time.)  The transcript itself was not the only piece of evidence, but it was important.  I’ve found that it’s also been useful in some of my current research projects as well.

But there’s also some difficulties involved in the use of University transcripts.  In 1974, the US enacted the Family Educational Rights and Privacy Act (FERPA).  One of its primary effects is to guarantee a right to the privacy of one’s educational and other academic records to university students.  This applies to all students during and after the time of their university enrollment.

However, there’s some uncertainty as to when or whether those rights expire.  A couple of years ago, while I was doing some research on a side project, I emailed the registrar’s office at ‘X’ University.  I wanted to look at the transcript of a long deceased alumnus who had written a dissertation making passing references to the history of science and religion, and I wanted to see if he had taken anything in his graduate education at XU that might have informed those remarks (or whether they were based on a received view from elsewhere.)  The assistant registrar at XU told me then:

  In order to view or obtain [this student’s] academic transcript you would have to be executor of his estate or possess power of attorney on his behalf because of the Family Education Rights and Privacy Act (FERPA) (20 U.S.C.  1232g; CFR Part 99) is a Federal law that protects the privacy of student education records.

– (Assistant Registrar at XU, 2011.)

This struck me as odd, because I had received access to other transcripts at other universities for the purpose of historical research, and had been told in more than one instance that FERPA did not apply to deceased individuals.  I was told that I could apply to XU’s legal department if I wanted to however, I decided against following this up at the time.

This summer, while on the Great Summer Research Road Trip, I wanted to examine another transcript of a different deceased student who also attended XU.  Before contacting the registrar’s office again, I decided to ask their legal office.  The first person in that office who I spoke to initially told me that, under FERPA, the direct descendants of the deceased individual would have to authorize my access to these documents.  (They did not tell me what I should do if the student in question had no direct descendants, or if those people could not be located.)  They promised to research the question and get back to me.

I the meantime, I contacted the Family Policy Compliance Office of the US Department of Education, hoping that they could clarify FERPA.  Only a few days later, I received a reply by email:

July 23, 2013


Dear Mr. Shapiro,

This responds to your email sent on July 19th, 2013 in which you asked for written clarification of the Family Education Rights and Privacy Act (FERPA) in its applicability to people who are deceased and whose student records may be of interest for historical research.

Your email states that you are currently engaged in a research project for which you hope to examine the academic transcripts of several individuals who attended American universities in the 1890s-1920s (all of whom are presumably deceased.) You indicated that some universities have been willing to comply with your request whereas others have told you that to do so would be a violation of FERPA. You asked for confirmation that FERPA does not apply to long-deceased individuals and that FERPA in no way prohibits or restricts the availability of records of deceased individuals for historical research.

The FERPA rights of eligible students (students attending or having attended a postsecondary institution) lapse or expire upon the death of the student. This interpretation is based on the common law principle that a cause of action based upon invasion of privacy is personal, and the right to bring such an action lapses with the death of the person who held it. Therefore, FERPA would not protect the education records of a deceased eligible student and an educational agency or institution may disclose such records at its discretion.

Additionally, attached you will find an official letter that was issued from this Office in 2008 to a State Archivist that also addresses your question. You may also find this useful.

Please let me know if you have any follow up questions or are in need of additional information.

Sincerely,

Dominica Donovan

Family Policy Compliance Office

www.ed.gov/fpco


Included in this email was a scanned copy of a 2008 letter to the Connecticut State archivist outlining some of the limitations of FERPA.  The relevant passage for my inquiry was at the very end.

There is no exception to the consent requirement that would allow you to disclose this information to historical researchers in personally identifiable form unless the information comes from the records of deceased eligible students or students who may be presumed deceased, as explained above. [Emphasis added]

page1page2page3

I’m posting this up because nowhere on the Department of Education’s FERPA site does it ever say this explicitly, and because searching the internet reveals a variety of uncertain or inconclusive information.  Much like the legal counsel at XU, it appears that many University registrars and legal departments don’t particularly know this limitation on FERPA.

Shortly after receiving this email from the Family Policy Compliance Office, I received an email from the XU Registrar.  The reply was much better informed than what I’d been told by other XU staff, though it was all the more frustrating for it:

I can say without hesitation that you are correct that the Family Educational Rights and Privacy Act of 1974 does not afford protection to deceased students or alumni/ae. FERPA protects the records of living students, and so it would be legally permissible for us to release the records of deceased students and alumni/ae to those making requests for them. It is important to note, however, that [XU] chooses to be more conservative than FERPA permits, and we do not release any educational records without either the written consent of students and/or alumni/ae.

– X University Registrar, 2013

This is perfectly reasonable.  FERPA protects student privacy, but there’s no reason why an organization couldn’t supplement FERPA with privacy policies of its own.  (If I had been initially told that this was an XU policy and not a FERPA requirement, I wouldn’t have pursued this.)  I certainly can’t fault any university for wanting to protect student privacy, even above and beyond what is legally required, even though I find it personally frustrating.

XU’s registrar also added:

I might also mention that all of the Registrars of the research universities in the United States confer with each other quite frequently, and [XU] is not at all alone in its policies regarding the release of educational records. Virtually all of our peer universities have policies that are at least as conservative as ours, and I know many that maintain even more restrictive approaches to access.

Given my own experiences with other universities, I’m not sure how widespread this is.  I also don’t know whether there’s a difference between public and private universities on this issue.  If FERPA does not apply, is it the case that StateU’s records of deceased students could be subject to a FOIA/Open Records type request (in states that have such laws?)

The American Association of Collegiate Registrars and Admissions Officers, provides advice to university registrar offices about FERPA, and presents it under the rubric of “Protecting Your Students—And Your Reputation.”  From this perspective it make sense to take, what the XU Registrar called a “conservative” approach.  A university can’t really be sued for failing to release records to someone like me, but they could be sued if they release something they’re not supposed to.  The AACRAO presents its FERPA compliance training as a concern with “Minimizing Your Risks” and successfully managing compliance audits.  The 2012 AACRAO FERPA Guide does explicitly state that FERPA does not apply to deceased students, but this exemption is couched in the language that suggests that the release or records might be permitted, but is far from suggesting that it ought to be.  Surrounded by the specter of risk, why would you do anything that isn’t utterly required?

But registrars aren’t the only parties at research universities with an interest in university records policy.  Research universities have history departments! Research universities are supposed to have a mission to promote scholarship.  One could even make the case that historical scholarship on university alumni could enhance a university’s reputation.  Why haven’t history departments sought to make sure that other parts of their own university is not impeding historical scholarship.  Why hasn’t the AHA tried to encourage universities to adopt records policies that protect the rights of living students, but which also make historical research possible without unreasonable barriers?

While I think I’d be happy to see my fellow historians take up this lobby, I’m more concerned right now by the fact that this provision of FERPA doesn’t seem to be very well-known by historians, administrators, or legal teams.  So hopefully my experience will help others.

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3 thoughts on “FERPA does not apply to Deceased Students

  1. I would suspect, based on my knowledge of the FORA-equivalent law in RI, that you would be able to use that process in many states to obtain what you are looking for. Most freedom of information laws specifically exempt student records protected by FERPA, but anything not specifically exempted should be requestable. You’d have to look at the specific law from the specific state, though.

  2. skriver:Hoppas att du kan hjälpa mig.Texten &#t&21;kommen8arer2#8221; och ”allmänt” med mera ligger under mina inlägg men det syns bara om man tar pilen pÃ¥ dom. Jag har försökt ändra färg och leta för att fÃ¥ det att synas igen men det fungerar inte. Har du nÃ¥tt förslag pÃ¥ vad jag kan göra?Mvh Lisa Marie

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