March 10, 2003
Mr. S. Daniel Carter
7505 Granda Drive
Knoxville, Tennessee 37909-1730
Dear Mr. Carter:
This is to respond to your October 10, 2002, letter and December 11, 2002, e-mail objecting to restrictions on the redisclosure of the final results of student disciplinary proceedings. This Office administers the Family Educational Rights and Privacy Act (FERPA), which addresses issues that relate to students' education records.
Specifically, you stated that the U.S. Department of Education should change its regulations so as to permit the victim of an alleged perpetrator of a crime of violence to redisclose the final results of a disciplinary proceeding conducted by a postsecondary educational institution with respect to that alleged crime. You also assert that the victim should be permitted to redisclose the name of the assailant, what the person was accused of, and any disciplinary action taken by the school.
FERPA is a Federal law that gives postsecondary students the right to have access to their education records, the right to seek to have the records amended, and the right to have some control over the disclosure of information from the records. The term "education records" is defined as those records that contain information directly related to a student and which are maintained by an educational agency or institution or by a party acting for the agency or institution. 34 CFR § 99.3 "Education records."
Under FERPA, a school may not generally disclose personally identifiable information from a postsecondary student's education records to a third party unless the student has provided written consent. 34 CFR § 99.30(a). However, there are several exceptions to FERPA's prohibition on nonconsensual disclosure of education records. In particular, FERPA provides specific exceptions for disclosure of disciplinary records in certain circumstances. One of the exceptions permits disclosure to an alleged victim of any crime of violence or non-forcible sex offense of the final results of any disciplinary proceeding conducted by an institution of postsecondary education against the alleged perpetrator of that crime with respect to that crime. In this circumstance, the institution may disclose the final results of the disciplinary proceeding to the individual, regardless of whether the institution concluded a violation was committed. 20 U.S.C. § 1232g(b)(6); 34 CFR § 99.31(a)(13).
Those individuals who receive information under one or more of the 15 disclosure exceptions set forth in § 99.31 may not generally redisclose that information to any other party without appropriate written consent of the student. 34 CFR § 99.33. As such, the § 99.33 redisclosure limitations apply not only to the § 99.31(a)(13) disclosure exception, but to many other of the § 99.31 exceptions as well. If an individual makes a disclosure that § 99.33 does not permit, then the educational institution may not allow that person to access personally identifiable information from education records for at least five years. 20 U.S.C. § 1232g(b)(4)(B), 34 CFR § 99.33.
A second, related disclosure exception is set forth in § 99.31(a)(14). Under this exception, an institution of postsecondary education may disclose the final results of a disciplinary proceeding, if it determines that:
the student is an alleged perpetrator of a crime of violence or non-forcible sex offense; and
with respect to the allegation made against him or her, the student has committed a violation of the institution's rules or policies.
When an institution determines that an accused student is an alleged perpetrator and has violated the institution rules, then there are no restrictions on disclosure or redisclosure of the final results of a disciplinary proceeding. In circumstances where an institution makes a determination that the accused student committed a violation, this clearly provides for much greater disclosure than is permitted by § 99.31(a)(13). In addition, the redisclosure restrictions of § 99.33 do not apply. On the other hand, § 99.31(a)(13) assures that an alleged victim can learn what the final results of a disciplinary proceeding were, even when the institution determines that the accused student did not violate its rules. When an institution discloses the final results, it must also inform the student that FERPA does not permit any redisclosure of this information.
Although we believe that the Department presently remains legally constrained to conclude that an alleged victim may not redisclose such information, we are in the process of considering what statutory or regulatory latitude there may be to permit limited redisclosures in the circumstances you described. We will be in touch with you with regard to any further developments.
Thank you for the comments you have provided on this matter.
LeRoy S. Rooker
Family Policy Compliance Office