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

excellent question re: definition of "student record" 

here's a basic description

an education record is any record kept by the school "directly related" to a 
student

BUT exceptions include the following:

records of a law enforcement unit of the school that were created by law 
enforcement for the purpose of law enforcement -- (i can't imagine law 
enforcement creating a record for any other purpose)

thus -- a school-police based investigative report is NOT a "student record" 
and FERPA does not apply-- 

and logic dictates that if a school-based investigative report is not a 
"student record", then clearly any record CREATED by an outside entity -- 
such as a local law enforcement agency -- would also NOT be considered a 
"student record" subject to FERPA -- even if the school obtains a copy -- 

in other words -- the school cannot transform a non-student record INTO a 
"student record" for FERPA purposes simply by obtaining a copy of someone 
else's documents and placing it in a school file -- so any outside law 
enforcement reports are also excluded from FERPA

and, consistent with my point earlier about the propriety of allowing release 
of records when students are at risk (which should ALWAYS be the case with a 
repeat offender), this exception regarding law enforcement records adds 
weight to the argument that when criminal conduct is involved, there is no 
basis for schools to talk about privacy rights in terms of information that 
identifies the perpetrator.? Combining the school safety factor with the 
exception for law enforcement files, it seems clear that identifying 
information about offenders is not protected at all under FERPA given that 
law enforcement should always have an investigative role - even if the victim 
opts not to formally press charges.? (in other words -- someone at the school 
should ALWAYS do SOME investigation -- and there is no reason anyone other 
than law enforcement should take on that responsibility in the initial 
stage)? A law enforcement report should always be done whether or not formal 
charges follow b
 ecause a student has no way of making an informed choice about whether to 
proceed with formal charges unless someone conducts a sufficient 
investigation to determine the evidence, strength of the case, etc.? In 
short, no victim should be asked whether they wish to proceed with formal 
charges without a full understanding of the strength of the case and frankly, 
more than one victim is a very strong case.? It is irresponsible to persuade 
a victim to move forward without a sense of the evidence, so Brett's point 
about the importance of pressuring a victim will have little success unless 
law enforcement does its job first.

This is especially important when more than one incident occurs -- which will 
be easier for law enforcement to know about only if they conduct some type of 
investigation in every case --

there is no doubt a case is much stronger when one person has been accused of 
abusing two different victims -- but if nobody is gathering this information, 
then the strength of the case is being ignored -- and while FERPA might be 
cited as justification for why more information is not shared, this appears 
to be a flawed view of FERPA.

Wendy Murphy
 




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