Privacy Please!

John C. Kuzenski
General Counsel, Pi Sigma Alpha

(Editor’s Remarks: As noted in the Spring, 2007 issue of the Newsletter, the National Office of ΠΣΑ remains dedicated to continuing the distribution of useful information to its faculty advisors across the country on “best business practices” for local chapters to follow. As such, this is the first in what is intended to be an ongoing series of relatively brief, non-technical legal guides to various aspects of chapter and Society business that will  provide useful reminders to advisors and chapter officers about ways in which their chapter can operate efficiently and trouble-free. Most importantly, the National Office wants advisors and officers of its chapters to be confident about operating those organizations to maximize ΠΣΑ’s mission of encouraging and recognizing excellence in the study of Political Science and political life without unduly exposing themselves to the types of administrative or legal crises that arise from time to time in the modern American university environment.)

            Among issues in contemporary higher education law, the Family Education Rights and Privacy Act (FERPA) of 1974 (a.k.a. the “Buckley Amendment”), 20 U.S.C. 1232g, 34 CFR Part 99) remains one of the most pervasive and important pieces of federal law that affects the modern job responsibilities of academicians. The overarching purpose of FERPA, of course, is to protect student privacy with respect to personally identifiable and/or sensitive information to which the student has some right of confidentiality. Most colleges and universities have developed very sound and practical guidelines for faculty to help ensure compliance with the requirements of the legislation, which are disseminated to faculty old and new at regular intervals by some compliance or other administrative authority at the institution. It is not hard to comply with FERPA as an academician; it simply requires a basic knowledge of the rules as part of the skill set of a contemporary professional in higher education.

            While the available literature on general FERPA-related issues is both useful and voluminous, however— you can search the internet quickly with your favorite search engine to see what I mean— the amount of information that is available and tailored to faculty advisors of collegiate honor societies is comparatively slim. Because advisors are acting as agents of their institution in serving their college-recognized honor society, important parts of FERPA apply to the way in which they conduct some of the business of their chapters. This essay is designed to call your attention to some of the best business practices of chapters in that regard. Again, it is not hard to comply with these suggestions; in fact, many of them are common sense-and-practice tidbits that may strike you as remarkably anti-climactic as you peruse them. Nevertheless, mistakes can and do happen across the realm of college-level extracurricular and other student groups, and in some cases they can be costly legal ones for a professor, an organization, a department and/or an institution in both economic and reputational terms. Here are reminders of some of these “best business practices” for chapter advisors in this regard that should keep you well off the path to trouble if they are followed:

• Never, never allow any student member of your chapter to review the academic or other protected records of current members or applicants for membership— most honor society advisors are necessarily in the business of reviewing applicant transcripts to confirm a student’s eligibility for the true honor of being in the organization.  FERPA allows faculty to engage in this type of review because they have a legitimate educational interest in doing so; other students, however, have no business reviewing any of these records and your disclosure of “student X”s” records to any other student—and possibly even other faculty who have no such legitimate interest-- gives rise to a possible violation. Checking transcripts for eligibility is one of those advisor-only duties that should never be delegated to others!

• Be mindful of the old wartime slogan “loose lips sink ships;” they can sink professional careers, too— as a faculty advisor with important (and sometimes admittedly thankless) tasks to perform for your chapter, as noted above, you have both access to protected student records and an obligation to review them personally for admission-to-chapter purposes. This gives you useful, but also potentially dangerous, knowledge about your students. Fortunately, it only becomes dangerous if you are the type to talk about what you know in hallways, elevators, restaurants or in other public or semi-public environments to unauthorized persons! Example: Professor Z, in the main hallway of his department during a class change period with lots of students and other faculty walking about, is asked by the department chair, “hey, did Student X get admitted to ΠΣΑ? I really like her enthusiasm!” Professor Z replies in a manner that allows overhearing, “no, she didn’t have the grades, sadly.” OOPS. Note also that under some circumstances, even non-overheard disclosure may cause FERPA problems; the seminal question there will be whether the department chair herself had a “legitimate educational interest” in receiving an answer to the question. Usually it will be reasonable to assume that she does have such an interest as department chair— but it never hurts to give it a brief second of contemplation and, if disclosure is warranted, to ensure that it takes place in a more confidential environment like her office.

•  Read “loose lips sink ships” as meaning “loose writings,” too— in fact, from a legal perspective, providing evidence of a potential FERPA violation on paper is even worse than having someone claim you did it verbally. While generally you should not and probably do not expect the stellar accomplishments of your students (such as admission to ΠΣΑ) to be news that they object to being shared, it is important to remember that being declined for initiation or other such information with a negative impact or connotation should never be publicly disclosed (in writing or verbally), but rather delivered in a confidential manner to the student(s) affected. Stories of student groups in years past abound (though fortunately, to my knowledge, not of any ΠΣΑ chapters) of the faculty advisor who wants to be a “pal” to his student members by putting them in the proverbial know about both the accepted and the rejected applicants for group membership or an academic award, or who considers it one of those friendly, helpful disclosures of information that serves the department’s majors by posting it where others can see it. You can probably see what’s coming like a fast train aimed for a piece of missing track— the department put a list of the “winners” and “losers” on a bulletin board, or a memo circulated with the same information to faculty and students alike. Other students then begin talking about the declined students among themselves, who in turn also begin talking— to their parents and/or the family attorney. If bad chapter news about someone such as a declined ΠΣΑ application or chapter disciplinary action has to be circulated around a departmental community, make sure it’s coming from the student him-or-herself. There are no FERPA issues with a student’s self-disclosure of that type of information.

• “Directory information” is fine, unless the student objects— this is almost certainly something you have picked up from your institution’s various attempts at FERPA compliance in the past, but the law allows schools to release without student consent what it calls “directory information,” namely a student’s name, address, telephone number, date and place of birth, honors/awards (for example, ΠΣΑ membership) and dates of attendance. But institutions must also provide students with notice of how to protest disclosure of this information, as well as to give them reasonable time to do so if they choose. For a faculty ΠΣΑ advisor, it makes sense to take 30 seconds at a chapter meeting or via broadcast email to your members to make a quick and simple remark— “if any of you object to the chapter providing general information about you to others, including members of the chapter itself for contact purposes, please let me know at your earliest convenience. If you have previously filed or are planning to file a FERPA non-disclosure request with the university, I would appreciate it if you would let me know ASAP.”

The relevant common-sense rule of thumb about all of the matters identified above—as well as many that time and column space will not allow— is an easily-remembered one from every hotel in which you have ever stayed; it’s that side of the hanging card on the back of the doorknob that reads “Privacy Please!” Another relevant rule, I think, is the Golden one; when dealing with student information in the course of your duties as chapter advisor, it helps to give pause and think “is this something that I would want disclosed to others if I were in the student’s shoes?” If you cannot immediately come up with an unequivocal affirmative to that question, it is probably best not to disclose. At the very least, additional consultation with your department chair, university counsel and/or the ΠΣΑ National Office is not a bad idea.