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U.S. Department of Education Announces Proposed Rulemaking under FERPA

April 18, 2011

The United States Department of Education ("DOE") recently released a notice of proposed rulemaking pursuant to the Family Educational Rights and Privacy Act ("FERPA"). The proposed regulatory changes to FERPA were developed to address the extensive data sharing between and among government agencies contemplated by recent federal legislation, including the America Creating Opportunities to Meaningfully Promote Excellence in Technology, Education, and Science Act ("COMPETES Act") and the American Recovery and Reinvestment Act of 2009 ("ARRA").

The proposed changes to FERPA are relatively minimal, as compared to the extensive regulatory changes implemented in 2008. The changes most relevant to primary and secondary public schools concern the definition and application of directory information. Specifically, the DOE proposes to amend the definition of directory information to include that an "educational agency or institution may designate as directory information a student ID number or other unique personal identifier that is displayed on a student ID card or badge." The personal identifier could only be designated as directory information, however, if it could not be used to access student records unless used along with a password or other protective measure. The DOE also proposes to clarify in the regulations that educational institutions may notify parents and eligible students that the release of directory information will be limited to specific parties, specific purposes or both.

Additional proposed changes by the DOE include the addition of definitions for "authorized representative," "education program," and "research studies," as well as amendments to the sections concerning the authority to audit or evaluate and enforcement procedures with respect to a recipient of federal funds that does not directly provide education to students.

The full text of the proposed regulations can be accessed here. Comments on the proposed regulations may be submitted online or by postal mail and must be received by the DOE on or before May 23, 2011 to be considered. Additional instructions regarding the submission of comments can be obtained by accessing the full text of the proposed regulations.

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