Lawmaker: Establish state penalties for schools’ FERPA violations

PHOENIX – An Arizona lawmaker wants to create state-level penalties for schools that violate a federal law prohibiting them from releasing students’ private information to non-educational entities.

“When we’re going outside the scope of education and giving this type of private information to anybody, it’s really a problem,” said Sen. Kimberly Yee, R-Phoenix.

The federal Family Educational Rights and Privacy Act already prohibits schools from disclosing student records without consent. Exceptions to that rule include schools releasing “directory information” such as students’ names, phone numbers and addresses unless a parent or student signs a non-disclosure form.

Penalties for violating the law can include a school, district or charter losing all of its federal funding.

Under SB 1450, knowingly committing a FERPA violation would cost up to 10 percent of an entity’s monthly state funding disbursement. The cuts would remain in place until the violation is corrected.

The bill won unanimous approval from the Senate. The House Education Committee endorsed it Monday, March 18, on a 6-3 party-line vote.

Yee said the bill followed two years of research into FERPA violations at Arizona schools. She told the committee she heard of a few violations, including one instance of school officials giving a mobile dentistry provider students’ medical insurance information. The company used the information to contact parents and get approval to complete dental work on children, she said.

“These are personalized sheets of information with your home information and your student identifier numbers and they should not be leaving the school campus – but they are,” she said.

Yee told the committee no one had come forward to file a formal complaint about those violations but said it might be because the public doesn’t understand the FERPA law.

The legislation would give a school or district 60 days to resolve a FERPA complaint. If the complaint isn’t satisfactorily resolved during that time, it would be referred to the state superintendent of public instruction, who would notify the entity of the violation and give another 60 days to correct it before funding cuts begin.

Janice Palmer, director of government relations for the Arizona School Boards Association, said the two-step process of notification would create local control over student privacy violations. The association registered as neutral on the bill.

“This should be taken care of at the most local of levels,” she told the committee. “If we’re going to the third stage … then something is wrong and there should be penalties.”

Palmer said she thought the likelihood of reaching that point would be “highly, highly unlikely.”

Several lawmakers on the committee raised concerns about whether the process would be confusing for school officials and make them less willing to do business with outside companies.

Rep. Doris Goodale, R-Kingman, chairwoman of the House Education Committee, said she was particularly concerned about mobile dentistry services that deliver care to thousands of Arizona children each year.

“I’m very concerned about shaping a law that will disenfranchise a complete business,” she said.

The Arizona Dental Association registered in support of the bill.

“It is a legitimate concern that students’ personal information is being given to private businesses, and the law should clearly reflect that the practice is not acceptable,” Kevin Earle, the association’s executive director, said in an emailed statement to Cronkite News Service.

Rep. Catherine H. Miranda, D-Phoenix, voted against the bill saying she feared creating a “double whammy” of penalties. She was joined in voting against the bill by Democrats Rep. Eric Meyer, D-Paradise Valley, and Rep. Lisa Otondo, D-Yuma, who called the bill “just another layer of bureaucracy.”

The bill also faced criticism in an article posted online by the Student Press Law Center, a nonprofit legal assistance agency that specializes in First Amendment issues.

Frank LoMonte, the group’s executive director, said in a telephone interview that the bill could add to confusion schools already have when applying FERPA. He said even though no one has even been fined under the law, FERPA already causes some schools to wrongly withhold information from the media and public.

“A bill like this one is going to make the obstruction just exponentially worse,” he said.

Rather than create a new state law, LoMonte said, those who are concerned about student privacy should take up the issue with Congress and lobby for revisions to the FERPA law.

“Everyone knows that the law is flawed and everyone knows they need to rewrite it,” he said.