Discussion List for campus-based and allied personnel working to end gender-based violence on campus.

["Wanda Viento" <>]

Here's my question: What is considered an "educational record" at an
institution? A paper turned into class becomes FERPA protected, any
information collected for admission and registration is FERPA protected,
but behavior off-campus at a party while drinking? How is that
considered an "educational record"?
Wanda

~~~~~~~~~~~~~~~~~~
Wanda L.E. Viento, M.S.W., Ph.D.
Associate Director of Student Development/
Women's Center Coordinator
Boise State University 
1910 University Drive
Boise, Idaho 83725-1335
208-426-4259
http://womenscenter.boisestate.edu

"If Rosa Parks had taken a poll before she sat down in the bus in
Montgomery, she'd still be standing."  ~~Mary Frances Berry, U.S. Civil
Rights Commissioner
>>> <>
>>>  10/23/07 6:52 AM >>>
Wendy and S. Dan,  

I understand what both of you are trying to accomplish, and in purpose I
am  
in accord.  But, we are giving legal advice to folks on this list, and 
rather 
than drawing broad strokes, I am trying to be precise about how to  
accomplish a goal all three of us share.  So, let me be  precise. 
 
The FERPA health and safety exception is to be narrowly construed, to  
include emergencies where health and safety is clearly at risk (see 
below).  If a 
victim is in harm's way, release is possible.  But, the  speculative
future 
risk to others, while implicating health and safety, is not  strictly an

emergency.  
 
Instead, I suggest that you use the approach I suggested before.  
Assume you 
have two alleged victims who have independently made formal  complaints 
against the same accused student.  They are not aware of each  other. 
If you are 
the administrator, ask each of them separately "If there  was another
female 
student making a similar complaint, would you want to know  about her?" 
If both 
say yes, have them execute written FERPA consents to  communicate their
names 
to each other.  FERPA will allow you to share  that.  From there, they
will 
connect the dots on their own and you won't  have been a party to
release of 
any personally identifiable information in  violation of FERPA.  
 
All I am saying is use some subtlety...there are clever--and legal--ways
 
around FERPA's restrictions.  Moreover, I think Wendy's comment about
Title  IX 
is well-taken.  FERPA is not interpreted to conflict with Title  IX. 
Thus, if 
you had a second complaint, where the m.o. was so similar as  to
establish a 
pattern by a repeat offending perp, I would call each alleged  victim as
a 
witness at the hearing of the other.  FERPA would allow you to  release 
information at the point for purposes of the judicial  investigation. 
Another clever 
end-run around the regs.
 
Here's the info on the FERPA health and safety provision:
 
"Another FERPA provision allows an educational agency or institution to 

disclose personally identifiable information from education records,
without  
prior written consent, 
in connection with an emergency [to] appropriate persons if the 
knowledge of 
such information is necessary to protect the health or safety of  the
student 
or other persons. 
20 U.S.C. § 1232g(b)(1)(I); 34 CFR §§ 99.31(a)(10) 99.36. 
Congress added this exception to the written consent requirement when
FERPA  
was first amended, on December 13, 1974. The legislative history
demonstrates  
Congress' intent to limit application of the "health or safety"
exception to  
exceptional circumstances -- 
Finally, under certain emergency situations it may become  necessary for
an 
educational agency or institution to release personal  information to
protect 
the health or safety of the student or other students. In  the case of
the 
outbreak of an epidemic, it is unrealistic to expect an  educational
official to 
seek consent from every parent before a health warning  can be issued.
On the 
other hand, a blanket exception for "health or safety"  could lead to 
unnecessary dissemination of personal information. Therefore, in  order
to assure that 
there are adequate safthe Secretary shall promulgate regulations to implement 
 this
subsection. It 
is expected that he will strictly limit the applicability of  this
exception."
Regards,

Brett A. Sokolow, JD
Special Advisor to  the United States Air Force Academy
Special Counsel to the VP for Student  Affairs, Saint Mary's College
(IN)
Special Counsel to the President, Hobart  and William Smith Colleges
Special Counsel for AOD Issues, Barton County  Community College
Special Counsel for Student Conduct Issues, Warren Wilson  College
Special Counsel to the Dean of Students, Hendrix  College

President, The National Center for 
Higher Education Risk  Management, Ltd.
"Best Practices for Student Health and  Safety"


(a not-for-profit corporation)
20 Callery  Way
Malvern, PA 19355-2969
Tel. (610) 993-0229
Fax (610)  993-0228
www.ncherm.org



************************************** See what's new at
http://www.aol.com
_______________________________________________
SAPC mailing list

https://list.mail.virginia.edu/mailman/listinfo/sapc