Where does FERPA fit?

When I wrote my last blog post about contract law and the issue of licensing student work for public distribution, several people asked me about FERPA, the Family Educational Rights and Privacy Act.  Basically, the questions amounted to this: Don’t we need to think about more than just the copyright licensing issue when we put student work in public, or when we require students to do their work in public?  And the answer, of course, is “yes.”  That previous post was focused on the licensing question, and made only a passing reference to potential privacy issues.  Here, I would like to look more closely at the issue of FERPA and student work in public, while acknowledging that I am not a FERPA expert.

The examples I gave about the types of assignments that might be made public, or might be done in public from the start, offer an interesting hierarchy regarding FERPA, I think.  So I want to address them in three categories.  First, things like theses, final papers and honors projects that an institution might want to put in its repository, then the issue of art exhibitions, and finally FERPA concerns when students work directly in a public forum.

The conversation started around the idea that a school might want to put final papers from a class, or perhaps capstone or honors papers, into its open access repository.  I noted that, as a matter of copyright law, it was probably enough to inform the students of this intent in the syllabus, so that subsequently handing in the work form an implied license.  I still think this is enough to deal with the issue of copyright, but it is not enough from the perspective of FERPA.  Rather, FERPA requires a written, dated and signed waiver for  educational records, such as these types of assignments, that are “in our keeping,” to be made public.  So for a final paper or project that is handed in to faculty and then released to the public through a repository, a document waiving FERPA in regard to that paper or project must be obtained.  This written document could also serve as an explicit copyright license, but, as I say, it is necessary as a waiver of FERPA, while copyright can be licensed by implication.

The situation is more ambiguous when we ask about art projects that are handed in with the expectation that they will be part of a public exhibition.  Once again, what I said about an implied copyright license for public display applies, but it seems like the FERPA waiver is also often implied.  On the surface there seems to be no difference between the art project handed in for a grade and the final paper or honors thesis.  We know we cannot put out a stack of papers and invite others, even other students, to look through them.  Yet, with art exhibitions, schools seldom obtain FERPA waivers; they simply hang the works, which surely are also “educational records in our keeping,” on the walls of a gallery and invite the public in to look.  My friend Stephen McDonald, who is General Counsel for the Rhode Island School of Design and one of higher education’s foremost authorities on FERPA, often speaks of an “implied pedagogical exception” to FERPA, and I think that construct might apply here.  The Family Policy Compliance Office at the Department of Education, which oversees FERPA compliance, has said fairly often that FERPA is not intended to interfere with ordinary pedagogical practice.  And they have been clear that putting a thesis or dissertation on a library shelf, which also involves public access to an educational record, is not a problem.  Perhaps the art works can be thought of in a similar way.  And it may be important that art is made for display; that is what its creators expect, and inclusion in an institutional art exhibit is desirable for them.

So in this example, it seems that both a copyright license, for public display of an art work, and a waiver of FERPA privacy rights are being implied.  I think it is important that we separate copyright and FERPA in our minds, and think about each of them carefully.  But it is interesting to see how they diverge and converge.

Finally, what do we make of those assignments where students are asked to do their work in public right from the start, either by creating a web page, developing a blog, posting a video to YouTube, or having a class discussion on Twitter?  This is not an abstract question; our faculty are making such assignments all the time.  A library school student I know recently told me that she elected not to sign up for a class because of a requirement that each student post a specified number of tweets.  Once again, I think that the copyright situation is addressed by an implied license.  But what of FERPA? The first question is really whether these kinds of materials are educational records as defined by FERPA in the first place.  The issue is whether the “records” are ever “in our keeping” when the student creates them directly on a public platform.  It may well be that FERPA is not implicated at all in this scenario, based on a strict reading of its definition of an educational record.  And, of course, that reading is entirely congruent with what student expectations must be in this situation; they would hardly expect privacy when their work is a webpage or a set of tweets. In my opinion, however, this does not entirely settle the matter.

Even if FERPA does not apply, some of its principles, based on the idea of protecting our students, are important and should be accounted for.  A couple of years ago I was asked precisely this question, and those interested can read this blog post on the HASTAC site that was written by Professor Cathy Davidson, formerly of Duke and now at the CUNY Graduate Center, based on advice I gave about this type of assignment.  To summarize that advice here, I suggested three important steps to respect student privacy even if FERPA was not implicated by the assignment to work in a public forum.  These steps are, I believe congruent with what I have been saying about implied licenses throughout these two posts.  First, students should know about the requirement in advance; they should be informed by the syllabus while they still have an option not to take the class.  Second, provision should be made for students to participate pseudonymously, a step that would clearly resolve any FERPA problem that might exist.  And, finally, I suggested that provision be made, at least in the instructors own mind, for an alternative assignment that could be available to the student who really needs to take the course but, for whatever reason, does not want to do his or her work in public.  Of course, instructors are entitled to assess the validity of those reasons, consider the pedagogical benefit from public work, and evaluate any proffered reasons why a pseudonym would not be a sufficient solution.

I actually suspect that the recalcitrant student who simply does not want class work done in public is a vanishing breed.  Most of our students today are very comfortable with having their writing, art works, and opinions on the Web.  But when they are not, we should take steps to accommodate their discomfort without compromising the pedagogical value we believe is behind the assignment.  Indeed, the fundamental conviction behind all of this extended discussion about student copyright and FERPA rights is to suggest that these legal regimes can be managed in such a way that students are respected while still taking advantage of the pedagogical opportunities that the digital environment offers.  Neither of these legal structures needs, or should be allowed, to make the Internet a “no go zone” for student work; they just call on us to think carefully and respectfully about that work, and the students who create it.

One thought on “Where does FERPA fit?”

  1. One piece of the question of public display / works in public that is not explicitly addressed here is the issue that some programs of study are specifically about preparing people to do thing in public. At some point, preachers need to preach, artists need to show their work, actors need to act, etc. Perhaps the question needs to be “when” and “how” and which of the students’ work will be made public. It would probably be good for the FERPA experts to develop templates to be built into program designs, eventually, to address this issue from the stage of students considering applying for a program onward.

    At the same time, copyright issues can loom large. I recently saw a video of an opera performance that included a young relative. Let’s not talk about that person’s future, but what if the equivalent of Frederica von Stade was in a performance her sophomore year that was recorded and retained. Then 30 years later, when she is famous, even legendary, someone finds it and distributes it. It might be humiliating or difficult for her, or if it was great, might involve her losing control of her own work, etc.

    Another side of the FERPA thing, is that I often think of the evaluation of the student as being the most sensitive part–the implied evaluation of the acting major who is cast in no roles her/his senior year is perhaps as harsh as anything that would be actively released to the public.

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