Education issues rules clarifying access to campus law enforcement records

WASHINGTON, D.C. — The U.S. Department of Education in mid-January issued long-awaited rules to implement the 1992 amendments to the Family Educational Rights and Privacy Act (FERPA) that distinguish “education” records from campus law enforcement records. But the new rules failed to exempt disciplinary records from the definition of “education” records.

As a result, government funding could still be in jeopardy if campuses fail to keep disciplinary records secret.

Congress passed FERPA, commonly referred to as the Buckley Amendment, in 1974 to deny federal monies to campuses which misused education records of students. Colleges and universities defined “education” so broadly that they denied access to any campus law enforcement records.

The Department of Education for many years refused to issue guidelines clarifying that law enforcement records were not education records.

In the 1992 amendments Congress explicitly removed “law enforcement unit records” from the confidentiality requirements in the Buckley Amendment. But Mark Goodman, Executive Director of the Student Press Law Center, said in January that colleges have worked around the law to keep campus crime secret. Either they failed to define campus judicial proceeding records as “law enforcement” records, or they channeled accusations of criminal conduct into a campus disciplinary process rather than to the police or security department.

The new regulations define “disciplinary records,” including those related to non-academic or criminal misconduct, as “education records.” However, in commentary, the department notes that access to these records is “an important part of the debate concerning campus safety.” The department has also formally contacted Congress, urging them to address the issue in new legislation.