People working in institutional education settings worry, rightly, about inadvertently violating Federal standards for student privacy when adopting new or cutting-edge technologies. In reality, educational technologies like digital portfolios do not violate the Federal Education Rights and Privacy Act (FERPA) and a variety of “cutting-edge academic support methods are perfectly lawful” (Schulze, 2009).
The matter of whether pedagogical choices by instructors that include peer group sharing of work, as in the case of establishing group portfolios and co-created work and grading, should not constitute a FERPA violation under a recent Supreme Court ruling. According to Schulze (2009), “The tactic of having classmates grade each other’s papers is a pedagogical method intended to present the learned material in a new context” (pg. 227), and it is not the intent of Congress to restrict pedagogical choices by instructors.
However, records of student work maintained by a central custodian, such as a school registrar or an institutional steward might be construed as an educational record subject to FERPA (Schulze, 2009), particularly at the level that they are aggregated beyond individual assignments. Schulze suggests that based on the Gonzaga University v. DOE case, FERPA, although vague and complicated to understand, leaves the interpretation to educational experts like the Department of Education (rather than courts) and is not intended to undermine teaching choices that “disclose innocuous information implicitly and directly” (pg. 232).
Bottom line? Applied to the case of digital portfolios, FERPA can be largely managed through the students’ ability to consent to share information, for instance by opting to share their information in a group portfolio, rather than having the instructor or institution make such selections. Self-publishing of academic work by a student does not constitute an institutional transfer of information to a third party if a student retains control over the public disclosure of their educational achievements, assignments and the like.
Schulze, Jr. L. (2009). Balancing Law Student Privacy Interests and Progressive Pedagogy: Dispelling the Myth that FERPA Prohibits Cutting-Edge Academic Support Methodologies.
Widener Law Journal, Vol. 19, p. 215.
Issues surrounding user privacy and consent are among the most important topics for educators and institutions in the information society. Consumer data is amassing at speeds greater than organizations can mine or aggregate to develop a knowledge base for teachers and administrators interested in measuring student learning. Employers are also interested in tracking professional development of employees, without truly contemporary tools to measure success and plan for succession, promotion and human resource allocation. Social media platforms are taking a fair-share of their place in the educational domain, but what are the ways that employers, educators and students can be cognizant of maintaining student privacy and intellectual production?
To begin, there are a host of considerations when using third-party digital platforms for the delivery of education. In order to evaluate the role of commercial educational technologies in higher education, it’s important to understand the rights and limits of the application of the Federal Educational Rights and Privacy Act (FERPA) to the development of academic work in digital portfolios. Concerns about the ways in which FERPA, (also known as the “Buckley Amendment”) are enforced is part of the terrain that students, faculty and administrators have been negotiating since 1974 (Shurden and Shurden, 2010).
Legislatively, FERPA was designed to protect the civil liberties of students who might be targeted by false or harmful record keeping and reporting by colleges and universities, without the knowledge or consent of the student. FERPA, under current law, applies to
“any public or private agency or institution which is the recipient of funds under any applicable program” (Shurden & Shurden, 2010; Legislative History, 2009).
In essence, the law applies to organizations receiving Federal funding ranging from K-12 to higher education. Student information can be accessed by parents of children under 18, but for all legal adults over the age of 18, parents are generally not able to access student records. The original intent of FERPA was two primary goals: to ensure that the rights of parents and students would be protected from third party access to information without consent, and to ensure that parents would have access to their children’s records (Shurden & Shurden, 2010).
Recent amendments to student privacy include emergency health information that should be known to third parties, after the fatal massacre of 33 people at Virginia Polytechnic Institute and State University by a student whose mental health information should have been divulged by faculty to third parties (Klein, 2009).
Concerns over the misuse of student data are of concern, particularly in the deployment of educational technologies and the sharing of information between instructors and students themselves (Shurden & Shurden, 2010; Hunt, 2009). In the matter of students grading each other’s work, the U.S. Supreme Court reversed the Owasso Independent School district No. I-011 v. Falvo, 122 S. Ct. 934,534 U.S. 426. In this case, a teacher was sued by a student after a peer student was allowed to grade their work and was a violation of FERPA and the disclosing of private student information to another student. However, the Supreme Court determined that school work does not constitute an “educational record” and that grading was not a FERPA violation (Shurden & Shurden, 2010, Hunt, 2009). Nonetheless, staying on top of FERPA updates in order to maximize educational output can be achieved by following the Department of Educations’ Code of Federal Regulations, which often interprets FERPA challenges and provides clarification and advice (FPCO, 2012).
What is important to note about the legislative environment when it comes to student privacy and educational records is tools like digital portfolios, and other educational technologies, are typically making use of the World Wide Web as a vehicle for sharing information. Once information travels across the Web, it is not entirely controlled. For this reason, it is important that students have an opportunity to learn about the Web as a resource for sharing and showcasing digital information, but that they also understand the opportunities and the costs associated with using the Web. Information traffic through internet service providers, telecommunications companies, and software companies and social media platforms can be data-mined and privacy cannot always be protected. For these reasons, portfolio technology can be an important pedagogical tool for increasing digital literacy among students and educators about how to share and showcase responsibly, and curate achievements with an eye on reputation management.
Barrett, H. (2007). Researching electronic portfolios and learner engagement: The REFLECT Initiative. Journal of Adolescent & Adult Literacy. 50:6, pp. 436-449.
Copyright Center, The. URL: http://www.copyright.com/content/cc3/en/toolbar/education/resources/copyright_basics.html#academia last accessed on 02/26/12.
Hunt, L. R. (2009). FERPA: Background and basics of the family education rights and privacy act. Your Rights. Retrievd August 27, 2009.
Klein, A (2009). Education department released new rules on privacy. Education Week, 28(16), 4.
Lorenzo, G. and Ittelson, J. (2005, September). An Overview of Institutional E-Portfolios. Educause Learning Initiative. Ed. Oblinger, Diana. ELI Paper 2005.
Paulson, F.L., Paulson, P.R. (1994, April). Assessing portfolios using the constructivist paradigm. Paper presented at the annual meeting of the American Educational Research Association, New Orleans, LA (ERIC Document Reproduction SErvice No. ED376209).
Riismandel, P. (2011). E-Portfolio Rising. Streaming Media. April/May 2011, pg. 14.
Shurden, S. and Shurden, M. (2010). Federal Educational Rights and Privacy Act: A Historical Perspective. Proceedings of the Allied Academies Internet Conference. Vol. 12, pg. 100.
Stiggins, R. J. (1994). Student-centered classroom assessment. New York: Merrill.