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This question is prompted by a similar question on academia.StackExchange: Is a professor allowed to ask me what grade I got in a previous class?

This is in the U.S.

Obviously, FERPA was brought up. Comments and explanations in answers talked about what it means to have a "legitimate educational interest" in a student's grades. This question posed to law.StackExchange is about what constitutes "legitimate educational interest"?

Generally, schools must have written permission from the parent or eligible student in order to release any information from a student's education record. However, FERPA allows schools to disclose those records, without consent, to the following parties or under the following conditions (34 CFR § 99.31):

  • School officials with legitimate educational interest;

The majority opinion on Academia seems to be that a teacher wanting to know their student's pervious grades in a different class - a class which was a prerequisite for the current class - is a legitimate educational interest. The only reason provided as for why is that the teacher can use it to deny access to the class to some students or to adjust the class speed and/or content to better accommodate the students' level of understanding.

I suggested that teachers can get this information in other, better ways, and have no true need or interest in previous grades. For example, when I want to get a feel for the level of the class up front, I have given an anonymous quiz on the first day of class. Since it's anonymous, it is obviously not graded. Others still insist that teachers in this situation have a legitimate educational interest in the student grades.

One person went so far as to suggest that FERPA only denies the teacher in cases of idle curiosity. That seems wholly ineffective to me at that point, as any teacher could always get out of a reprimand by claiming "I heard this student was concerned about their standing and I wanted to see if there was anything I could do to help." You cannot easily prove that a teacher had only idle curiosity.

So the question is, in a nutshell: Legally, what has FERPA's "legitimate educational interest" been interpreted as meaning, strictly? If this has ever been tested in court for any grey areas like this (ie: not cases of negligence or idle curiosity), that would be great.

My personal interest in this is to get a better idea of when FERPA denies access to student records and when it does not. I am concerned, as the interpretation of some people of "legitimate educational interest" makes me wonder if FERPA does not really protect our privacy in practice, since negligence and idle curiosity should already have been grounds for workplace discipline for school officials in any competent school.

  • A professor is always allowed to ask; the better question is, when is he allowed to look it up without your consent (which is where FERPA becomes relevant). That is very institution-dependent. Whether or not an instructor can deny you enrollment in his class is also an extremely institution-dependent matter. – user6726 Jan 16 '18 at 22:53
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    @user6726 That is why I specified "access" instead of "ask for" in my question. I thought the same thing when I read the question on academia: anyone can ask anything. – Aaron Jan 17 '18 at 0:03
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The exact text of 34 CFR § 99.31 makes it clear that the determination of who has "legitimate educational interest" is left up to each educational institution to establish:

(a) An educational agency or institution may disclose personally identifiable information from an education record of a student without the consent required by § 99.30 if the disclosure meets one or more of the following conditions:

(1)

(i)

(A) The disclosure is to other school officials, including teachers, within the agency or institution whom the agency or institution has determined to have legitimate educational interests.

Moreover, 34 CFR § 99.7 requires each institution to notify students of their particular definition of "legitimate educational interest":

(a)

(1) Each educational agency or institution shall annually notify parents of students currently in attendance, or eligible students currently in attendance, of their rights under the Act and this part.

...

(3) The notice must include all of the following:

...

(iii) If the educational agency or institution has a policy of disclosing education records under § 99.31(a)(1), a specification of criteria for determining who constitutes a school official and what constitutes a legitimate educational interest.

(bolding mine)

As far as whether this has ever been tested at law, I'm not sure. There are a few cases mentioned in this legal review article from 2003, though the author calls the existing case law at the time "meager":

Not surprisingly, schools' interpretations of the legitimate educational interests exception have been at issue in some FERPA controversies. In Krebs v. Rutgers, for example, a university attempted to characterize its disclosure of students' Social Security numbers to campus post office personnel as a "legitimate educational interest." The United States District Court for the District of New Jersey enjoined the practice, noting that "the regulations do not suggest, and it is far from clear, that distribution of social security numbers ... serves a 'legitimate educational interest.' " In contrast, in Achman v. Chicago Lakes Independent School District No. 2144, a Minnesota federal district court held that the supervisor of the school's detention room had a legitimate educational interest in accessing the disciplinary records of a student she monitored. In another FERPA case from 1987, the Wisconsin Court of Appeals found that a school official who requested students' education records to defend against her pending criminal charges did not have a legitimate educational interest in the records." Finally, in another instance that some commentators have deemed "an egregious example of when disclosure serves no legitimate educational interest," a substitute teacher told her class that a student had HIV and classmates should not share lip balm with him.

Earlier in the article, the author makes basically the same point you make in your question:

Thus, if a professor, campus employer, or other school official can contrive a colorable "legitimate educational interest" for accessing a student's education records, the official may obtain the data without the student's knowledge or consent. ... Because policies are not uniform, systems administrators are largely untrained, and schools are not held accountable, school discretion in defining legitimate educational interests may undermine student privacy.

  • The first half of your question was prompting me to suggest "But without any further definition or case law, saying 'You define it' essentially means nothing, as the school can define 'official' to mean 'a human, live or dead' and 'interest' to mean 'anything', so is there really nothing to further constrain it?" But then the second half of your answer essentially confirms that, if pressed, there really is no restriction and it is up to the mood of the courts. That is what I feared. +1 – Aaron Jan 17 '18 at 1:29
  • It is also worth noting that one can consent to disclose records and that someone can impose consequences for failure to disclose. For example, a transfer student can be required to disclose a transcript from a prior institution and an employer can require a transcript as part of a job application. These transfers are made with your permission. – ohwilleke Jan 17 '18 at 3:22

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