The FERPA Farce: Why the Council is Legal and Admin is Off-Base

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The administration's legal concerns about the Honor Council center around the Family Educational Rights and Privacy Act (FERPA), a federal law which protects the privacy of student education records within all public schools.

The administration’s legal concerns about the Honor Council center around the Family Educational Rights and Privacy Act (FERPA), a federal law which protects the privacy of student education records within all public schools.

“The current Honor Council structure need(s) to be changed to ensure compliance with state and federal law.” In a March 21st email, Dr. McGee asserted this as the conclusion from the closed session of the most recent meeting of the Regional School Board. The law he is referencing is the Family Educational Rights and Privacy Act, or FERPA. I’ve heard many people say, “I understand the need for a review.” In fact, I’ve said this myself. Until I actually did the research.

I would like to start by saying that I no longer represent the Honor Council. None of my statements are affiliated with the views of faculty sponsor Mr. John Wilkes, Honor Council Chair Derrick Wang, any other member of the Council, or the Council as a whole. Know, though, that I am writing from a place not only of heart but of intimate knowledge: I was a member for four years during my tenure at Maggie Walker, am currently on the University of Richmond Honor Council, have been receiving the same vague emails you have, and attended the most recent board meeting on the 17th.

The totality of my research, experience, and common sense tells me that the claim administration is making, that the Honor Council acts in violation of FERPA, is unfounded, ill-timed, and self-interested.

The Maggie Walker Honor Council is not in violation of FERPA. It does not take a lawyer to assert this. A simple reading of the law is as follows:

    1. It is meant to give parents or students who are over 18 a degree of control over what a school does with education records. This is the spirit of the law.
    2. “Education records” has a broader definition under the law than just transcripts. For example, these records include disciplinary records but NOT things like names or honors and recognitions.
    3. The law applies to institutions funded publicly by state or federal funds, so it applies to Maggie Walker.
    4. There are two important, explicitly outlined provisions of the law found in section 99.31: the “directory information” allowance and the “school official” stipulation.

[Admin’s assertion] that the Honor Council acts in violation of FERPA is unfounded, ill-timed, and self-interested.”

Directory information is allowed to be disclosed by the school to any party upon request without written permission from parents or students over 18. In short, the school can tell anyone about directory information without concerns for privacy. The school just needs to designate what they believe is directory information. Directory information, according to FERPA, is just what it sounds like — basic information found in a student directory or phonebook (if anyone still used them…). So phone numbers, address, grade, even weight and height, and yes, names. Under § 99.31 (a) (11) of FERPA, the school can disclose names to a body that submits a request.

This is applicable because the Honor Council does not deal with academic records, disciplinary transcripts, or non-directory information. The Honor Council, at a very late stage in its investigative process, merely deals with names of offending students. If administration designates “names” as directory information under provision 99.37 of FERPA then the Honor Council would not be in violation of the law by any reading. The Honor Council never needs to access academic or disciplinary records of students. On my four years on the Honor Council I never once had access to a student’s file, even to note guilt or innocence in an Honor Council trial.

This is an issue with how administration values student voice, personal value, mental health, and a community of trust.”

The second stipulation of the law is less cut-and-dry — the “school official” stipulation. It states that written permission from the parent or student above 18 is unnecessary if the information is being disclosed to a school official. Now, if you say I am flattering myself by calling Honor Council members “school officials,” I don’t blame you. But while I get off my high horse, check out the stances of Virginia’s post-secondary institutions. Both William and Mary and the University of Virginia define Honor Council members as school officials, and both are, similar to Maggie Walker, funded partially by the state. The schools’ websites highlight a particular section of the law – § 99.31 (a)(1)(i)(A) which allows disclosure without permission as long as the school official has “legitimate educational interests.” The University of Virginia asserts that UVA Honor Council members “require personally identifiable information from a student’s education records to investigate, adjudicate, or advise students involved in an alleged violation of the Honor Code.” The same procedural necessity applies to the Maggie Walker Honor Council, but to a lesser degree. The Honor Council may see the final grade of the assignment in question for the specific case. For example, if the charge is cheating, the teacher may provide the test of Student A and Student B in order for the Council to compare the two grades and answers. Beyond isolated grades, the Council never looks at academic records. Similarly, a student’s past honor offenses never determine the verdict of the case in question.

The reason the legality of the Honor Council is being questioned after decades of acting in accordance with FERPA is obvious: administration is looking for a scapegoat.”

The very next section, though, outlines why the Maggie Walker Honor Council should be allowed to operate as body under the school official exception. It “performs an institutional service or function for which the agency or institution would otherwise use employees.” The students elected to the Honor Council are unpaid volunteers doing an institutionalized, necessary service that would otherwise be performed, as has been repeatedly threatened, by administration. The very fact that in most public high schools a single administrator does the job of an honor council legally defines the Maggie Walker Honor Council as a group of school officials.

It is clear, through a reading of section 99.31 of FERPA, that the Honor Council does not violate the law. This has been clear since 1974, when the act was passed. The Honor Council is not perfect. Some students argue that it is not transparent enough. Some students argue that confidentiality is compromised in such a small school. Some students feel uncomfortable approaching the Council. But despite these complaints, which undoubtedly should be addressed, the Council does not violate FERPA. It never has.

I daresay this is clear to the administration, to the school board, and to the school attorney. But the reason the legality of the Honor Council is being questioned after decades of acting in accordance with FERPA is obvious: administration is looking for a scapegoat.

So why now? Because leadership has noticed a call for change from the students, an assertion that the guidance department, administration, and the college application process are teaching students that honor and mental health are not priorities. Instead of using recent turmoil as a sign that reform to the entire culture of Maggie Walker is necessary, administration has instead minimized the extent of this issue. This is a disservice to all students, whether they have ever committed an honor offense or not. Despite recent press, this is not an issue about cyberbullying, a single student’s actions, the Honor Council’s process, or whatever the next vague email claims to be the source of the outrage. This is an issue with how administration values student voice, personal value, mental health, and a community of trust. And it’s an issue that can’t be fixed if faculty, parents, students, and alumni remain silent about administration’s self-serving farce.

I encourage you to read the section of the law that applies to honor councils, both secondary and post-secondary, at the Cornell Law Legal Information Institute.

[This is] an issue that can’t be fixed if faculty, parents, students, and alumni remain silent about administration’s self-serving farce.”

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