Mark Zunich
Employee Relations Manager
Office of Human Resources
University of Oregon
Re: Family Educational Rights and Privacy Act (FERPA) Application to Graduate Teaching Fellows and Collective Bargaining Agreement Provisions
Dear Mark:
You asked for my advice and comment on a letter from Leroy Rooker, Director of the Family Policy Compliance Office of the U.S. Department of Education. That letter was directed to the University Counsel at the University of California and provided advice regarding the University's ability to provide certain records regarding teaching assistants to the California Public Employment Relations Board (CPERB).
As part of our collective bargaining agreement with the University's graduate teaching fellows (GTF's) represented by the Graduate Teaching Fellow Federation, American Federation of Teachers, Local 3544, AFL/CIO (GTFF), we have agreed to provide the Union with a list of all GTF's as well as their social security number, department and terms of appointment. We do not get students' prior consent to provide that information. I have advised you, based on Mr. Rooker's letter to the University of California, we can no longer continue that practice. To explain how I reached my conclusion, I will provide you with some background information on FERPA.
FERPA is a federal law that was adopted to protect students' privacy and to allow students access to their records. Under FERPA colleges may not, in general, disclose a student's educational records to persons or entities outside the institution without the student's permission. There is an exception that allows colleges and universities to disclose information designated as "directory information" without a student's prior permission (I have attached a list of the information the University has designated as "directory information" for your information). However, if a student requests to have her directory information suppressed, the university may not release even the fact of her enrollment without the student's permission.
In the University of California's situation, the first question, which is not relevant to our situation, the University asked the U.S. Department of Education how to respond to a subpoena from the CPERB. Under FERPA, colleges and universities may release a student's records without the student's permission in response to a lawfully issued subpoena, but only after giving notice to the student and providing adequate time for the student to attempt to quash the subpoena. However, our case does not consider providing information in response to a subpoena.
The answer to the next question is relevant to the requirement in our collective bargaining agreement: may the University disclose student records to CPERB? Although we are not concerned with disclosing information to ERB, the Oregon counterpart of CPERB, Mr. Rooker considers a disclosure to CPERB as a "disclosure of information to a specific third party." Therefore, the analysis he uses would apply as well to disclosure to the GTFF. He concludes the University may not provide the names when those names would disclose a student's status as a teaching assistant without prior consent from each student. He also states that the University could not designate a student's status as a GTF as "directory information." ("Under FERPA, the fact that a student is a teaching assistant is not directory information." Pg. 4). You have also asked if providing the GTFF the names of GTF's differs from listing GTF's in the University's faculty/staff phone directory or noting them on University web pages or in department offices. Mr. Rooker responds directly to the same question in his letter by stating, " the nature and circumstances in the situations [such as printing them in the university catalog, posting them to web pages and other places on campus] differ from the disclosure of information to a specific third party, the PERB. Our advice does not relate to publishing of a teaching assistant's name and address on-campus, action that an individual who is acting as a teaching assistant knows is inevitable as part of his or her teaching curriculum."
Mr. Rooker further identifies two methods of facilitating communication between teaching assistants and CPERB - the University may seek individual permission from teaching assistants for the disclosure or it may distribute CPERB's mail to teaching assistants.
You have asked the relationship of the state employment relations law to FERPA. First, nothing in the state employment relations law obligates us to give the union a represented employee's social security number, department or terms and conditions of employment. The information the University has provided is made available by contractual agreement with GTFF. As a result, this is not an area where state law conflicts with federal law. Furthermore, a contractual provision that violates law is void.
Moreover, even if some of the information provided is statutorily required, as in the California case where state law requires that students be identified to CPERB, FERPA's requirements would, I believe, pre-empt state law. Even if such a conflict occurred, as you will note in Mr. Rooker's letter there is no provision to waive FERPA requirements.
In conclusion, based on Mr. Rooker's letter to the University of California, I no longer believe we can provide the information required in Article 3, Section 2 of the University's agreement with GTFF unless individual students consent to the disclosure. On the other hand, I am quite willing to work with you to find an alternative to meet the GTFF's needs that will create the least administrative burden on the University.
Please feel free to call me with any questions.
Sincerely,
Melinda W. Grier General Counsel