Don’t FEAR the FERPA

The Bava is bavatastic today. From You Can’t Spell FERPA Without FEAR:

But thanks to a tweet by Mike Caulfield almost two years ago, I finally had a way to think UMW Blogs’ relationship to FERPA differently. Mike basically noted that by giving students their own spaces online wherein they control their online identities, decide what they will share and won’t, and take control over the disclosure of their own data we are more FERPA compliant than any other system on campus. In fact, that’s exactly right, UMW Blogs is focused on giving students control over their own learning process, reflections, and take back ownership of their data. What could be more FERPA compliant? I think it is time to reclaim the FUD around FERPA and reinterpret it as it was intended: an act that encourages universities to give students more control over their own data, and by extension their own teaching and learning. Fact is, FERPA is in many ways a parallel toGardner Campbell‘s idea of “student as sysadmin of their own education” —that is what we should be actively pursuing as a community dedicated to teaching and learning in the open rather than heading down a road of prohibition further alienating higher education from its mission.

I’m not sure what the exact tweet Jim is referring to, but around two years we stumbled on this formulation:

FERPA is about a student’s right to control the publishing of records and products associated with their education. So is Web 2.0. So where’s the problem?

That insight came out of a meeting we had with the Registrar to try and solve the problem once and for all. And to our surprise, the argument hit home.

I do want to make sure that the whole CELT team gets credit for that though — Jenny Darrow (@gobman) was the one that took the initiative to meet with the Registrar and talk FERPA. And after we suggested suggested creating FERPA/Web 2.0 boilerplate for syllabi that even the Registrar could live with, Matthew Ragan (@raganmd) took on the arduous task of the revision/buy-in cycle. 

Here’s some other important stuff that came out of the CELT-Registrar summit:

  • Classes using such techniques must provide reasonable accommodation to students who have issues with “being public”
  • For issues that relate to “being public”, that accommodation can be agreed on between the student and the professor.  It could involve the use of pseudonyms, or an alternative non-public assignment the student could work on. The professor should always state this in the syllabus, so that students understand they have the option to request this.
  • For issues relating to grades, or official records, there is a much more rigid line. Under no circumstance can any official educational record be divulged without explicit written permission of the student, specifying exactly the people to whom the record will be released.
  • Professor comments on blogs are not, in most cases, official student records. They are not information maintained by the college, not part of any permanent assessment, and as long as they do not mention grades, etc., are probably best seen as ephemeral notes or classroom comments.
  • Here’s an interesting point I hadn’t thought of before the meeting: if you can’t do it on the web because of FERPA, you can’t do it in class either. FERPA makes no distinction between revealing elements of the educational record to a students classmates and revealing them to the greater web. A comment that related to a student’s grade that was illegal on the web would likely also be illegal in the classroom. If you can’t force students to post their art on the web (and you likely can’t — you have to provide an alternative to those who ask), you can’t force them to post it in the school’s hallway either.

That last point is pretty key. If your students watch each other present material in class and comment on their presentations there is no basis for a legal distinction between them doing that in class and them doing it on the web. FERPA is web-neutral, or, more exactly, web-ignorant. There is no legitimate distinction to be made between divulging an educational record to a classmate of a student and divulging it to an outside party. 

The Registrar actually gave the example of hanging student artwork with names out in a hallway. You can’t require that students hang named artwork in a hallway. Does that mean you can’t have students hang named artwork in a hallway? No — it just means that if a student requires accommodation (for instance, if a student is attempting to avoid letting a stalker know what classes she is in) that you work with the student to provide an alternative that will not adversely impact their grade.

Again – I can’t repeat this enough. There’s no legal difference between the hallway and the web, no difference between the oral presentations your students give and their blog posts. None.

The wonderful thing is, as Jim mentions, in a Web 2.0 context this is a learning opportunity. The choice to publish under a real name or a pseudonym is one that students can consider (no matter how much Google Plus tries to take that decision away from them). Understanding their rationale for that choice and choosing a strategy to implement it is not just an issue of classroom management — it’s one of the key learning outcomes for a course. 

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