Section 4: Helping Students with Career Development
Legal Issues in Advising
FERPA
The Family Educational Rights and Privacy Act (FERPA) (20 U.S.C. § 1232g; 34 CFR Part 99) is a Federal law that protects the privacy of student education records. The law applies to all schools that receive funds under an applicable program of the U.S. Department of Education.
FERPA gives parents certain rights with respect to their children's education records. These rights transfer to the student when he or she reaches the age of 18 or attends a school beyond the high school level. Students to whom the rights have transferred are "eligible students."
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Parents or eligible students have the right to inspect and review the student's education records maintained by the school. Schools are not required to provide copies of records unless, for reasons such as great distance, it is impossible for parents or eligible students to review the records. Schools may charge a fee for copies.
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Parents or eligible students have the right to request that a school correct records which they believe to be inaccurate or misleading. If the school decides not to amend the record, the parent or eligible student then has the right to a formal hearing. After the hearing, if the school still decides not to amend the record, the parent or eligible student has the right to place a statement with the record setting forth his or her view about the contested information.
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Generally, schools must have written permission from the parent or eligible student in order to release any information from a student's education record. However, FERPA allows schools to disclose those records, without consent, to the following parties or under the following conditions (34 CFR § 99.31):
- School officials with legitimate educational interest;
- Other schools to which a student is transferring;
- Specified officials for audit or evaluation purposes;
- Appropriate parties in connection with financial aid to a student;
- Organizations conducting certain studies for or on behalf of the school;
- Accrediting organizations;
- To comply with a judicial order or lawfully issued subpoena;
- Appropriate officials in cases of health and safety emergencies; and
- State and local authorities, within a juvenile justice system, pursuant to specific State law.
- School officials with legitimate educational interest;
Recommending Students for Employment or Graduate Schools
Providing references for students seeking employment or admission to graduate school is an important professional responsibility for faculty members. Like other responsibilities, there are legal implications of which faculty should be aware. First, faculty should be aware that both written and oral communications regarding a particular student's work or suitability for employment/ graduate school should be considered confidential. You are, perhaps, all aware that under the Buckley Amendment students can waive their right to obtain recommendations completed on their behalf, but they are not obligated to do so. Faculty, on the other hand, must safeguard students' privacy rights. They have no authority to disseminate student records or other confidential matter regarding a student without the permission of the student. Of course, both oral and written recommendations, like all confidential material, may only be disclosed to those authorized by the student to receive the recommendation.
Students are obliged to ask faculty to serve as a reference and faculty should not do so until a student makes such a request. If an employer contacts a faculty member for a reference and the student in question has not asked the faculty member, the faculty member should first consult with the student before offering a recommendation. Once a student requests a reference (written or oral), faculty members can provide a recommendation without fear of breaching a student's privacy rights. Faculty should use discretion, however, and not disclose the specific contents of educational records (grades, for example) without a student's approval.
It is recommend that students and faculty discuss a recommendation frankly at the time the student first seeks faculty assistance. The student should be aware of the nature of the faculty member's recommendation. If a student finds the faculty recommendation will be unfavorable, the student can withdraw the request and approach other faculty. Faculty should also be aware that unfavorable recommendations might expose the author to defamation charges. In such a circumstance, faculty may wish to consult with legal counsel before completing the recommendation.
When students apply to graduate schools, they typically present faculty with a recommendation form that includes a statement on confidentiality and a waiver that students may sign. The Career Center recommends that students seeking recommendations for jobs follow similar procedures.