FOR COMMENT

Report of the Committee on Changes to the Family Educational Rights and Privacy Act (FERPA)

In October 1998, Congress passed amendments to the Family Educational Rights and Privacy Act (FERPA, also known as the Buckley Amendment) which permit, but do not mandate, the non-consensual disclosure of certain information from a student's disciplinary records. Specifically, these amendments allow institutions to report to parents violations of alcohol and drug laws by students under the age of 21 and to disclose to the public the results of a disciplinary matter in which a student has been found responsible for violating the institution's policy with respect to conduct that would constitute a "crime of violence" or a "non-forcible sex offense".

In response to the amendments to FERPA, the President and Provost convened a committee, chaired by Dr. Richard Beeman, Dean of the College, to advise them about what changes, if any, the University should make with respect to its confidentiality policies. The Committee submitted its recommendation regarding the first of these issues, the "parental notification" issue, last fall, and this led to the revisions of the University's confidentiality policy published Of Record in Almanac on November 2, 1999.

During its deliberations last year the Committee sought input from the campus community regarding both issues. Because the Committee dealt with the parental notification issue first, it did not have as much opportunity to consult with the campus community on the second issue, whether the University should disclose the final results of certain disciplinary proceedings to the public. In addition, when the committee began its deliberations, the Department of Education had not yet issued implementing regulations, and there were many questions regarding the language of the amendments, including the meaning of terms such as "crime of violence". In July 2000, the Department of Education issued final regulations which attempt to answer many of the open questions regarding the meaning of the amendments. With a fuller understanding of the law, the committee is again seeking feedback from the University community on the issue of whether the University should make public the final results of a disciplinary proceeding where a student has been found responsible for conduct which would constitute a "crime of violence" or a "nonforcible sex offense."

The regulations issued this summer have made the following clarifications:

A school may disclose to the public the "final results" of a disciplinary proceeding if it has determined that the student is an alleged perpetrator of a "crime of violence" or "nonforcible sex offense" and that the student is in violation of the school's rules with respect to that allegation.
An "alleged perpetrator" is a student who is alleged to have committed acts which, if proven, would constitute any of the crimes enumerated in the regulations. Since disciplinary matters are usually determined without a finding in a court of law, the regulations acknowledge that institutions must use their judgment, on a case-by-case basis, in determining whether particular alleged behavior would constitute a "crime of violence" or a "nonforcible sex offense".
"Crimes of violence" are arson, assault offenses (including aggravated assault, simple assault, intimidation, and stalking), burglary, homicide, destruction/damage/vandalism of property, kidnapping/abduction, robbery, and forcible sex offenses (including rape, forcible fondling and indecent liberties). "Nonforcible sex offenses" are statutory rape and incest.
The term "final results" means that a determination has been made by the panel, committee or hearing board responsible for resolving disciplinary matters. It is not necessary for all internal reviews or appeals to be completed for a matter to be considered "final".
The information that may be disclosed under this exception to FERPA is limited to the name of the student who is the "alleged perpetrator"; the institutional rules which were found to be violated; the essential findings supporting the institution's conclusions that the violation was committed; and the nature of the sanction imposed, including the disciplinary action taken and the duration of the sanction. The names of any other students involved, victims or witnesses, may not be disclosed without the prior consent of those students.
Institutions may disclose the final results of disciplinary proceedings, under the conditions described above, so long as the final results were reached after October 7, 1998.

This Committee seeks the input of all segments of the Penn community as to whether the University should amend its confidentiality policy and its disciplinary charter to allow public disclosure of the final results of disciplinary proceedings--information previously protected from non-consensual disclosure. Again, it should be noted that our current policy, which ordinarily protects the privacy of all disciplinary records, could remain unchanged, or could be modified in whole or in part to permit increased public disclosure. This important policy consideration deserves careful discussion and debate. The members of the Committee remain available to clarify and explain the meaning and potential impact of this change in the law.

Please direct your comments to: Michele A. Goldfarb, Director, Office of Student Conduct, goldfarm@pobox.upenn.edu.

--Richard Beeman, Chair, Committee on Changes to FERPA

Almanac, Vol. 47, No. 10, October 31, 2000

| FRONT PAGE | CONTENTS | JOB-OPS | CRIMESTATS | OF RECORD: Alcohol Policy Changes , Emergency Closings & Guidelines on Cooperative Exchanges of Certain University Information | FOR COMMENT: FERPA Changes | PENNs WAY 2001 | TALK ABOUT TEACHING ARCHIVE | BETWEEN ISSUES | NOVEMBER at PENN |