"Fleeting" or "Permanent": are Digital Communications "Education Records" Under FERPA?
As emails, texts, and tweets have proliferated on college campuses, courts have struggled to determine how these digital communications interact with student privacy laws such as the Family Educational Rights and Privacy Act (FERPA). A pre-digital age statute, FERPA requires schools to provide students with access to their own "education records" that the school "maintain[s]," and to safeguard those records from disclosure. In the hardcopy era, the statute was easy to apply. If a document was related to a student, and kept by the school, it was an "education record." But the spread of digital communications has made this question less straightforward. In determining whether these communications are "education records," the central issue is whether a school "maintains" them. Courts have struggled to answer this question, which has created uncertainty for both litigants and institutions of higher education.
The consequences of this uncertainty has reverberated through all levels of litigation, and caused unpredictability for institutions of higher education. In the courts, the issue has affected everything from newsworthy cases to lower-profile discovery disputes. For instance, students suing institutions for discrimination often seek production of digital communications about themselves. If FERPA applies, the student will have a greater entitlement to see the documents, and the school will have a duty to protect other students' information that may appear. And even outside the education law sphere, cases ranging from family disputes to tort claims may involve discovery of digital communications to, from, or about students. Moreover, outside of litigation, if digital communications are education records, schools responding to a student's request to review his own education records may have to undertake the burdensome task of combing through thousands of emails to satisfy their disclosure obligations under FERPA.
This article explores whether emails concerning students are "education records" under FERPA, and proposes a few principles that attorneys (and schools) should keep in mind when a dispute over student emails arises.
Scope of FERPA
Congress enacted FERPA, 20 U.S.C. § 1232g, as a new section within the General Education Provisions Act in 1974. FERPA provides that the government must withhold education funding from "any educational agency or institution" that has a "policy of denying, or which effectively prevents," students from inspecting and reviewing their "education records" upon request. The government must also withhold education funds from schools with a "policy or practice of permitting the release of education records…of students without the written consent of their parents," with some listed exceptions. In other words, the government must withhold funds from schools with a "policy" of withholding "education records," or with a "policy or practice" of improperly releasing them to others. While in practice the Department of Education has issued fines rather than withholding all federal funding—which would include federal student loans—this is still a serious penalty for even inadvertent disclosures.
Whether a document must be produced to students or parents, and withheld from others, depends on whether it's an "education record." FERPA defines "education records" as "those records, files, documents, and other materials which (i) contain information directly related to a student; and (ii) are maintained by an educational agency or institution or by a person acting for such agency or institution." 20 U.S.C. § 1232g(a)(4)(A). Other than those two fairly vague elements—"directly related to a student" and "maintained"—and listed exceptions, neither FERPA nor its regulations, offers any guidance on whether a "record, file, document, [or] other material" is an "education record." See 34 C.F.R. part 99.
Where digital communications are concerned, the central issue is whether the school "maintains" such documents. There is no federal appellate precedent on the issue, and state courts and federal district courts have split on the question.
Owasso and the "Central Custodian" Standard
The confusion over the meaning of "maintained" traces back to a sixteen-year-old U.S. Supreme Court decision. The Court has only once spoken on the meaning of "maintained," and it did so in a different context. In Owasso Independent School District No. I-011 v. Falvo, 534 U.S. 426 (2002), a parent sued her children's school district, challenging a teacher's practice of having students grade each other's assignments and then announcing the grades in front of the class so that the teacher could record them. The parent in Owasso believed that this "peer grading" violated FERPA because the process gave students access to each other's grades, which the parent believed were "education records."
The Court disagreed. It concluded that the school did not "maintain" the records because Congress meant for FERPA to reach records that are "kept in a filing cabinet in a records room at the school or on a permanent secure database, perhaps even after the student is no longer enrolled." Id. at 433. In the Court's view, the statute "implies that education records are institutional records kept by a single central custodian, such as a registrar." Id. at 435 (emphasis added). Under this rubric, the school had not "maintained" the students' grades. The Court acknowledged that a teacher's grade book might be an education record (an issue it declined to decide), however, the student graders "only handle assignments for a few moments as the teacher calls out the answers," and it would be "fanciful to say they maintain the papers in the same way the registrar maintains a student's folder in a permanent file." Id. at 433.
Not all of the Justices agreed with the Court's "central custodian" theory. Justice Scalia called the majority's new standard "incurably confusing." Id. at 437 (Scalia, J., concurring). He noted that the theory apparently conflicted with FERPA's plain text, and accused the majority of injecting uncertainty where express exemptions could apply. Id. (noting the tension between the majority's statements about the teacher's grade book and § 1232g(a)(4)(B)(i), which exempts a teachers' own records).
Justice Scalia's concurrence highlighted the tension between the "central custodian" theory and FERPA's text, foreshadowing the difficulty that courts have had in applying this standard to digital communications. While a majority of courts have applied Owasso's "central custodian" rule to find that schools do not "maintain" digital communications, a sizeable minority have disagreed, concluding that emails are "maintained."
To read the full article, please click the PDF link below or click here to go to the Terralex webpage.
 Pub.L. 90-247, Title IV, § 444, formerly § 438, as added Pub.L. 93-380, Title V, § 513(a), Aug. 21, 1974, 88 Stat. 571.
 FERPA's rights and protections apply equally to parents of minor students and to students themselves who are over eighteen years of age or attending "an institution of postsecondary education." 20 U.S.C. § 1232g(d).
 Exceptions include releasing records to other school officials with legitimate educational interests in them, to other schools where a student intends to enroll, for certain law enforcement purposes, and in connection with financial aid applications. 20 U.S.C. § 1232g(b)(1)(A)-(L).
 "Education records" do not include, for instance, "records of instructional, supervisory, and administrative personnel and educational personnel ancillary thereto which are in the sole possession of the maker thereof," or "records maintained by a law enforcement unit of the educational agency or institution that were created by that law enforcement unit for the purposes of law enforcement." Id. § 1232g(a)(4)(B)(i)-(iv).