The following document from General Counsel to the University Melinda Grier was presented to and discussed by the Senate Ad Hoc Committee on Student Records at the 12 December 2003 meeting of the commmittee. There are additional documents available on the committee website.
Background
The University’s Student Records policy was originally adopted as an administrative rule during the 1970’s. Before the current changes, with a few exceptions, the policy had not been modified since the 1970’s despite changes in law. The Family Educational Rights and Privacy Act (“FERPA”) has been amended since that time and those amendments were not reflected in the University’s student records policy. In addition, the student records policy was out of compliance with state law regarding records retention, which had also changed since the student records policy was originally adopted.
The UO is required to comply with FERPA. Because FERPA was amended without comparable amendments to the student records policy, the student records policy no longer reflected how student records were required to be handled. Thus, students reading the policy would be incorrectly informed about the way the University was required to handle their records. Further, after approximately thirty years, some of the procedures contained in the policy no longer reflected current operating procedures or were difficult to follow or understand.
In Winter Term 2003, when Randy Geller, Director of Policy and Legal Affairs, came to UO he began working with Herb Chereck, Registrar, to update the policy. After they had developed a preliminary draft, meetings were held with a number of campus groups. These include the Faculty Advisory Committee, the Student Senate, Associated Students Presidential Advisory Council (ASPAC), Undergraduate Council, Graduate Council, Student Affairs Council, Deans Council, Residence Hall Association, ASUO Programs Council, EMU Board and both outgoing and incoming ASUO Executives were consulted.
The University took additional steps as part of the rule-making process. Although no rule-making hearing is required at all, the University scheduled two rather than the usual one public hearing to take testimony. When requested, the effective date was delayed until September 15, 2003. The effective date for the provision that drew the most concern, related to law enforcement subpoenas, was further delayed until December 10, 2003.
USAPatriot Act
The USAPatriot Act became effective October 26, 2001. It covers a myriad of issues related to law-enforcement and intelligence gathering. It amended a number of statutes. Its amendment to FERPA did not affect the University’s obligation to respond to valid law enforcement subpoenas. Provisions regarding law enforcement subpoenas had been added earlier.
In 1994, the Improving America’s Schools Act amended FERPA. These amendments included provisions eliminating the requirement for schools (and universities) to have a student records policy, to permit disclosures of certain disciplinary action taken against students, to allow disclosure to comply with a judicial order or lawfully issued law enforcement subpoena without first notifying the student if “the court or other issuing agency has ordered that the existence or the contents of the subpoena or the information furnished “ not be disclosed, and to waive the recordkeeping requirements regarding the existence, contents or information furnished in response to such a subpoena. The amendment of the University’s student record policy was written to bring the University’s policy into compliance with the law enforcement subpoena provision of FERPA.
The USAPatriot Act in an amendment to FERPA created a procedure that a U.S. Assistant Attorney General or higher-ranking official might use to obtain a court order seeking the disclosure of education records by certifying that “specific and articulable facts” related to the investigation of terrorism support the request. Court orders under the USA Patriot Act are much like law enforcement subpoenas already permitted under 1994 FERPA amendments. The court order obtained under this procedures is ex parte, i.e., one that is issued without notice to another party on the initiative of a law enforcement agency. The court order may require the recipient not to disclose its existence or the records or information produced in response to it. FERPA’s record keeping requirements do not apply. As a result of these similarities, the University’s obligation under the USAPatriot Act is no different than the requirement that already existed under FERPA with respect to law enforcement subpoenas. Because orders under this provision of the USAPatriot Act are like the orders and subpoenas described in the 1994 FERPA amendment, the language in the University’s proposed rule designed to comply with the 1994 amendment would not change if the USAPatriot Act had not been passed or if it is repealed.
The USAPatriot Act and other federal action taken in response to terrorism, e.g., the Public Health Security and Bioterrorism Preparedness Act of 2002 and the Enhanced Border Security and Visa Entry Reform Act of 2002, establish certain requirements that apply to the University or University employees. The University cannot change or amend those requirements by adopting administrative rules or policies containing different requirements. The University can adopt policies to make sure certain procedures are in place so that if a University employee receives a law enforcement subpoena or U.S. Attorney General order prohibiting notice to the student, no education records are released unless or until it is reviewed by counsel to verify its validity.