Colleges face little risk of violating a key federal student privacy law if they are trying to meet the requirements of Title IX and the regulations governing it, according to a new legal analysis.
The U.S. Department of Education enforces Title IX, which bans sexual misconduct on college campuses, and the Family Educational Rights and Privacy Act, or FERPA.
Because of that, the department has said it won’t consider attempts to comply with Title IX and the associated regulations as violations of FERPA, according to the Congressional Research Service.
FERPA forbids colleges that get federal assistance from disclosing students’ records and personal information, in most instances, without their consent. Colleges can share basic, limited information about students, such as their telephone number and date of birth, however. The law also permits them to provide student information to law enforcement or colleges’ threat assessment teams.
But one new legal area is how FERPA interacts with Title IX and the new regulation on the law issued last year by the Trump administration. The rule created a pseudo-judiciary system for evaluating sexual violence cases, with both parties being allowed to cross-examine the other through a surrogate.
The department can’t enforce either law in a way that would violate students’ constitutional rights, CRS wrote.
“According to this line of reasoning, FERPA cannot prohibit a school from disclosing to an accused student the evidence collected against him or her in a disciplinary proceeding because that would violate due process,” it wrote.
The research service emphasizes that colleges are unlikely to face legal repercussions for disclosing evidence in these proceedings.
The Ed Department has “done its best” to interpret FERPA and Title IX in a way so they don’t conflict, said Sandy Bilus, a partner at law firm Saul Ewing Arnstein & Lehr. He specializes in cybersecurity and higher education issues.
Bilus said it’s usually trickier for a college to figure out how to handle disclosure of students’ records if they were a witness to an incident of sexual violence rather than one of the parties directly involved.
Colleges are not running into trouble infringing on FERPA, he said. More often, they are being dinged for potential Title IX violations, such as if they don’t provide students with evidence in a case, he said.
Although the department has the ability to, it has never withheld federal funding over a FERPA violation, he said.
The department has said FERPA and Title IX requirements do not contradict each other, according to CRS. But when “a direct conflict arises,” CRS continued, Title IX provisions override those of the student privacy law.
The agency said Congress could amend FERPA to clarify the relationship between that law and colleges’ legal obligations under Title IX.
The Biden administration looks to be getting ready to overhaul Title IX. Bilus said institutions should watch these adjustments to see how they overlay with FERPA.