An Act Worth Balancing
College students today are walking around on campuses with their privacy protected and their safety at risk. But the laws and regulations that govern the privacy of student information, including medical and mental health records, also permit sharing under certain circumstances. Those laws should not be put up as roadblocks to student safety.
In fact, the laws actually facilitate student safety. The Family Educational Rights and Privacy Act (FERPA), for example, protects the privacy of student education records while permitting disclosure under a variety of circumstances. FERPA defines education records as “those records, files, documents, and other materials that contain information directly related to a student and that are maintained by an educational agency or institution or by a person acting for such agency or institution.” College students have two very basic rights under FERPA: the right to access their education records, and the right to the confidentiality of those records.
This does not mean that higher ed administrators can’t use their discretion in disclosing student information under FERPA. Discretion is the operative word here. FERPA allows, but does not require, disclosure.
Individual colleges and universities can use FERPA and its exceptions as guideposts—but not as shields against disclosure or as swords toward disclosure. This discretion gives officials the option to disclose information as they see appropriate and gives the college community as a whole the tools it needs for the protection of both its proprietary information and its safety. It’s up to officials to determine which action to take in terms of the disclosure decision. FERPA merely opens the door.
Administrators should use FERPA and other laws to facilitate discussions regarding an appropriate balance of safety and privacy for the entire college community. It is also very important that decisions to exercise an exception be made after a careful examination of the specific facts of each situation. Looking at situations on a case-by-case basis forces schools to carefully consider the pros and cons of disclosure, and results in a more thoughtful, reasonable outcome.
The way discretion is used is tremendously important, particularly when it comes to effective intervention in the lives of troubled students. The college community has to be educated as to what can be said and disclosed and under what circumstances. Each member of the community needs to take an educated responsibility for the safety and privacy of the community as a whole.
Sharing what’s allowed under FERPA will go a long way toward keeping campus communities safe. If someone is concerned about a student, that individual should have a clear sense of the steps he or she can take to express that concern. Whether submitting a report to campus security or simply notifying certain identified professionals on campus who can assess the potential threat and take appropriate action, the person with the concern needs to be informed about what to do.
Lack of knowledge is very dangerous, as we have seen in recent tragic events. The Virginia Tech Review Panel report, Mass Shootings at Virginia Tech, released in 2007, stated, with respect to the issue of information privacy and the laws that govern it, “The first major problem is the lack of understanding about the law; and the next problem is inconsistent use of discretion under the laws.” Institutional officials must gain clarity on the disclosure laws, educate their communities, and develop policies and practices that embrace those laws and use them as tools to protect students—both with respect to their privacy and their safety.
It’s crucial that college officials approach the task of striking a balance between student privacy and safety in a way that embraces the flexibility of laws like FERPA. Understanding and working with the exceptions that allow for communication of specific information about students under specific circumstances can only improve the overall safety of students and of the campus community. Students can be assured they walk the campus with both their privacy and safety protected.
Elizabeth Brody Gluck, an attorney, is a partner in the health care and business sections of the Boston office of Verrill Dana LLP. Her practice focus includes advising colleges and universities on issues related to student health and safety. She can be reached at firstname.lastname@example.org.