Helen Adams, The Family Educational Rights and Privacy Act, coauthor with Bob Bocher, Carol A. Gordon and Liza Barry-Kessler of Privacy in the 21st Century: Issues for Public, School, and Academic Libraries (hot off the press), explains why post-secondary librarians argue that FERPA protects library records while school librarians argue that FERPA does not even cover library records. Both sets of librarians want privacy for their users, but come to opposite interpretations of FERPA.
Here is Helen's blog post, written for LibraryLaw Blog:
The Family Educational Rights and Privacy Act (FERPA) of 1974 has protected the confidentiality of student “education records” in K-12 and post-secondary schools in any school receiving federal funds for over twenty years. It gives parents the right to inspect and review the minor student’s education records and request changes where inaccuracies are found.. While the application of the law to various situations has continued to evolve through case law, one area critical to student privacy remains unclear. Are K-12 school library records considered “education records,” and do they fall under the jurisdiction of FERPA? Library records are not specifically listed either in the definition of “education records” within the law or its explanatory materials.
Why does it matter whether K-12 library records are “education records”? If library records are “education records” under FERPA, parents and/or guardians will have access to the library records of minor children through the age of 17. Confidentiality of library use records is fundamental to free and open inquiry for young children, preteens, and teenagers in school library media programs and part of the intellectual freedom of all patrons including youth. The library community has a strong commitment to providing and protecting the privacy of students using school libraries. This commitment is evident in ALA and AASL policy statements including the Code of Ethics of the American Library Association that states: "III. We protect each library user's right to privacy and confidentiality with respect to information sought or received and resources consulted, borrowed, acquired or transmitted.” The American Association of School Librarians’ Position Statement on the Confidentiality of Library Records further affirms “The library community recognizes that children and youth have the same rights to privacy as adults.”
In some states, the privacy of minors is already compromised by requirements under state laws relating to the confidentiality of library records. The states currently allowing parents or guardians to legally access library records of minor children include Alaska, Alabama, Colorado, Florida, Georgia, Louisiana, Ohio, New Mexico, South Dakota, Utah, Virginia, West Virginia, Wisconsin, and Wyoming. There appears to be a trend toward changing state library records laws to give parents and/or guardians access to the library records of their minor children.
It is ironic that while school librarians would prefer to interpret K-12 school library records are not being education records under FERPA, librarians in post-secondary libraries prefer the opposite. Most post-secondary students are eighteen years old and no longer minors. At age eighteen, the right of review of the education records under FERPA passes to the “adult” student, and the library records would be kept confidential for the student.
Not having a clear determination on the ambiguous legal definition of “education records” in FERPA leaves school librarians at a disadvantage in protecting the privacy of their minor student patrons. While the political climate is not right now for mounting an effort to revise either the legislation or its rules, let’s begin to discuss the best way to protect the privacy of minors when using a library and plant the seeds for change in the future.