Ga. Tech cites FERPA, removes all instructional wikis

November 16, 2011 11:56 AM

Despite pioneering the use of wikis in instruction back in 1997, this week Georgia Tech deleted all course wikis, out of concern that they were in violation of FERPA. The Family Educational Rights and Privacy Act was enacted in 1974 and prohibited federal funding of educational institutions that denied the rights of students and parents to review "educational records" or that did not protect the privacy of "educational records." A lot of people are rightfully concerned about the negative educational effects of "schools interpreting these pieces of legislation to restrict students’ communication and access online, right at the time when the Web has such great potential for teaching and learning." The thing is, what if Georgia Tech is right?

In 2002, the Supreme Court held in Gonzaga v. Doe that FERPA did not create a private right of action. In other words, students whose records are disclosed in violation of FERPA can't sue for damages. So Georgia Tech doesn't have to worry about getting sued over its wikis. It does, however, have to worry about losing federal funding. That's where another Supreme Court case from 2002 becomes instructional. In Owasso Independent School Dist. v Falvo, a parent sued to stop the school district from allowing students to grade each others' papers and call the grades out to the teacher because it embarrassed her children. The Supreme Court held that the school hadn't violated FERPA because the grades on individual assignments weren't "educational records" under FERPA, so calling them out in front of the class couldn't be a violation.

The court's rationale is troubling for situations like Georgia Tech's: the critical factor for what information constituted an educational record was the institution's act of maintaining that information. FERPA defines "educational record" as "information directly related to a student . . . maintained by an educational agency or institution." As Justice Rhenquist wrote for the Court, "The word 'maintain' suggests FERPA records will be kept in a filing cabinet in a records room at the school or on a permanent secure database, perhaps even after the student is no longer enrolled."

If maintenance of a database after a student leaves is the triggering factor for implicating FERPA, then wouldn't any public online work by a student, such as a blog or wiki, be a record covered by FERPA? Georgia Tech's apparent broad interpretation of "educational record" under FERPA is troublesome, but it doesn't appear to be entirely unjustified.

posted by fogovonslack (39 comments total)

I'm an instructor, not a lawyer, but this seems like a pretty clearly bonkers interpretation of FERPA to me. It's true that most student work doesn't take place on the public Web, though, and maybe there are good arguments that it shouldn't.
posted by RogerB at 12:07 PM on November 16, 2011 [1 favorite]

The thing is, in most cases a lawyers job isn't answering the question: "Is what I'm doing legal or not" but rather "Could what I'm doing potentially get me sued, regardless of the final outcome?"

I think it leads to a lot of ridiculous nonsense.
posted by delmoi at 12:07 PM on November 16, 2011 [8 favorites]

You know, I could have thought of more creative ways to handle this. Have students come up with--or just assign them--a public handle that isn't their real name, which is what shows up to people who aren't logged in as members of their actual class. If the real problem here is just that the student's name remains out in public associated with the class, there should be ways to deal with that. Maybe not the simplest, but once you implement them, they'd be done, and you wouldn't lose all those features.

If I can figure that out this fast, that sort of suggests that maybe there were other reasons to not want to maintain this system. That and, you know, these decisions came out in 2002, how did it take nearly a decade to think of this interpretation?
posted by gracedissolved at 12:15 PM on November 16, 2011 [2 favorites]

FERPA is routinely abused by universities for a variety of reasons, some of them corrupt.
posted by warbaby at 12:19 PM on November 16, 2011 [1 favorite]

So by the same interpretation, putting up pictures that children draw around the room or in the hallways (or displaying projects, posters) would be a violation?
posted by sarae at 12:19 PM on November 16, 2011

As someone at another one of the Georgia State system institutions, let me say my first reaction was a resounding "WHAT THE FUCK?"

By this argument, even our university email/name directory is in violation of FERPA, which is nonsense.
posted by strixus at 12:19 PM on November 16, 2011 [1 favorite]

RogerB: "I'm an instructor, not a lawyer, but this seems like a pretty clearly bonkers interpretation of FERPA to me. It's true that most student work doesn't take place on the public Web, though, and maybe there are good arguments that it shouldn't."

My day job involves university IT, and every day something weird about is attributed to FERPA. My favorite so far is that we publish username as first/last name in LDAP... because maybe FERPA. Students have a right to opt out of directory publications, but LDAP is also used for internal directories, so... we'll probably stand up a public whitepages directory rather than properly instrument the existing one to hide data.
posted by pwnguin at 12:20 PM on November 16, 2011

Deleting course wikis is an AMAZINGLY short-sighted and stupid thing to do. Georgia Tech just took a huge step backward. Don't they have a law school? Maybe they should look into fighting this rather than caving in.
posted by Renoroc at 12:21 PM on November 16, 2011 [2 favorites]

Georgia Tech does not have a law school. It is an engineering/science institution. They do, however have lawyers.
posted by mr_roboto at 12:24 PM on November 16, 2011 [2 favorites]

The Supreme Court held that the school hadn't violated FERPA because the grades on individual assignments weren't "educational records" under FERPA, so calling them out in front of the class couldn't be a violation.

And yet, when I started grad school, a big deal was made of the fact we must hand papers back directly to the student, not passing the stack of homework round the room. At my undergrad institution, it was not uncommon for someone to say 'I'll leave the homework outside my door for you to pick up.' Of course, when I started grad school, I was also baffled that we got handed syllabi.
posted by hoyland at 12:26 PM on November 16, 2011

This is as bizarre an interpretation as I've ever heard of FERPA.
posted by Think_Long at 12:27 PM on November 16, 2011

every day something weird about is attributed to FERPA

Yeah, it really confuses me that every campus ('s counsel) seems to have its own set of interpretations of FERPA — everyplace has a bunch of different, often very idiosyncratic, little policies that they allege to be necessary because of it. Shouldn't most of this stuff be pretty settled and clear-cut by now, and therefore pretty homogeneous from school to school?
posted by RogerB at 12:29 PM on November 16, 2011

This seems bizarre to me. Under this interpretation, you'd also have to throw away all student publications archived in school libraries. You'd have to do away with all law school law reviews and journals, too, because they have student articles and student editors listed on the masthead.
posted by yarly at 12:48 PM on November 16, 2011 [1 favorite]

God forbid students learn how to work together to accomplish a task without some sort of authority overseeing the process.
posted by RobotVoodooPower at 12:50 PM on November 16, 2011 [3 favorites]

Is there any better reporting on this anywhere? I can't find any links to anything by Georgia Tech except the blog post in the FPP, and I'm reluctant to accept the bloggers analysis of the school's legal reasoning. He says that "Georgia Tech’s interpretation of FERPA is that protected information includes the fact that a student is enrolled at all." But this is obviously untrue -- FERPA contains an express carve-out for directory information, which would include lots of information confirming the fact of enrollment. Georgia Tech must have a more detailed motivation for deleting the wikis than this.
posted by yarly at 12:54 PM on November 16, 2011 [1 favorite]

Each university puts in place FERPA policies based on their lawyer's interoperation of the law and regulations. You are at the whim of some one writing memos in the university legal department who is looking to reduce risks of litigation to zero. They have very little interest in the impact of these decisions on the education experience. There is no one at the Department of Ed who can contradict the lawyer either. There is no way to have a FERPA policy reviewed and certified for compliance by any controlling authority (except if someone sues you).
posted by humanfont at 1:02 PM on November 16, 2011

Georgia Tech must have a more detailed motivation for deleting the wikis than this.

Must? Or should?
posted by blucevalo at 1:07 PM on November 16, 2011

yarly: "But this is obviously untrue -- FERPA contains an express carve-out for directory information, which would include lots of information confirming the fact of enrollment. "

I can guess at the problem here. Directory information (think yearbooks) can include dates of attendance, but I suspect disclosing which classes you're enrolled in and thus which wikis you had edit rights to is not directory information. For example, if you're retaking a course (for the second time), you may want to hide that information from your peers. In any case students have the right to opt out of directory disclosure and still pass the course, so public course wikis with historical continuity might not pass muster. Hell, private ones might not if you don't clear the history.
posted by pwnguin at 1:10 PM on November 16, 2011

And yet, when I started grad school, a big deal was made of the fact we must hand papers back directly to the student, not passing the stack of homework round the room.

Is that for real? That seems a little pathetic, really. English universities publish a list with everyone's average percentage grade at the end of every year, I've never heard anyone complain about that.
posted by atrazine at 1:15 PM on November 16, 2011

I think part of the reason FERPA interpretation is so unclear is that there isn't a right to sue, so no court is ever going to be in the position to definitively rule about the scope of FERPA. And yeah, it's used to justify lots of wacky policies: I once got in trouble over a "FERPA violation" for have students provide comments on each others drafts (i.e. peer editing as done in nearly every freshman composition class), even after showing the dean the Owassa case. Our college's lawyers didn't agree that the Supreme Court precedent was relevant.
posted by fogovonslack at 1:22 PM on November 16, 2011 [1 favorite]

Of all the ways in which universities stretch the bounds of FERPA on a regular basis, this is the issue they choose to go nuclear over? Is there really no greater priority they could be worrying about?
posted by zachlipton at 1:23 PM on November 16, 2011

Like strixus above I work in the same university system, and it has been my experience that their legal department (like many legal departments of large institutions) have a major CYA mentality. Among other things this has led to all sorts of paperwork designed to protect us from lawsuits that would either be ignored or thrown out if a lawsuit were ever filed or cover situations where the risk of a lawsuit is so remote that we would probably never see one anyway.
posted by TedW at 1:33 PM on November 16, 2011

I went to a tiny college where everyone lived together in the dorms and there were only maybe 50 different classes each semester. It was pretty common to be like, Hey, I want to catch X for lunch, I'll meet him outside Math 202 or whatever. Of course if you couldn't remember what class he had you couldn't find him.

But each class had its own folder on the school file server, with permissions granted only to the students in the class. Some ingenious person (ahem) just wrote a quick little script that used the permissions to show the classes anyone was enrolled in. It was terribly useful and became quite popular.

Point being, never underestimate the FERPA-violating superpowers of bored engineering students.
posted by miyabo at 1:48 PM on November 16, 2011 [3 favorites]

I wonder how much legal energy Penn State put into FERPA compliance.
posted by spitbull at 2:05 PM on November 16, 2011

Is that for real? That seems a little pathetic, really. English universities publish a list with everyone's average percentage grade at the end of every year, I've never heard anyone complain about that.

Uhhh, well, I would complain about such a thing. I realize a ranking system like this is a cultural thing, and I'm not in a position to fairly evaluate the practices of English universities, but the overall theme of privacy rules in American universities is that grades are the students' personal business and it should be their choice whether and how to disclose them. Obviously, disclosure of your grades might be required if you want to apply to grad school or many jobs, but that's your choice as a student to make. About as far as we go down that road is designating high-performing students by way of the Dean's List and the use of Latin honors at graduation, and even that practice can feel awkward at times.

Some would call this coddling students by not wanting to hurt anyone's feelings, but the idealist in me believes that a (perhaps small) portion of academia still cares about education for the pure sake of learning. Why should it be the job of the college to formulate rankings of students for the future use of grad schools and employers? Numerical assessment and rankings are, at best, secondary, and often antithetic to, actual teaching and learning. See, for example, Alfie Kohn's "From Degrading to De-Grading," which presents a number of arguments on this point, although more focused on grades in K-12 education. I do accept that evaluation, of some form or another, has a valuable role to play in the learning process, but a key part of keeping the focus on actual education, as opposed to collecting grades, is to minimize the hysteria around the grading process. Keeping that process private, as opposed to a competition, is a good first step to that end.

Because when it comes down to it, learning is not a competitive activity. There's no zero-sum game of education in which my strong performance on an exam somehow diminishes your own performance (minus grading on a curve: an exception that proves my point); the A-student doesn't profit off the class dunce's failure. Rather, all of society benefits a little whenever someone learns, and all of society loses a little whenever someone fails to do so. Everybody gets different things out of every learning experience, and while it can be interesting to compare those individual differences on a qualitative level as part of the evaluative/reflective process, there's little to be gained by trying to objectively rank the class, let alone publishing those rankings publicly.

However, I do wonder though why their policies cannot simply permit students to use course wikis pseudo-anonymously if they so choose (with the pseudonym known to the instructor of course). This wouldn't work in some courses, where wikis are used to coordinate both online and offline work, but would offer more privacy options in many cases. Still, as one commenter on the first FPP link points out, this policy would also logically apply to student performances and concerts, as the actors in a University-sponsored play are similarly presenting their coursework in public.
posted by zachlipton at 2:05 PM on November 16, 2011 [1 favorite]

You know, I could have thought of more creative ways to handle this. Have students come up with--or just assign them--a public handle that isn't their real name, which is what shows up to people who aren't logged in as members of their actual class. If the real problem here is just that the student's name remains out in public associated with the class, there should be ways to deal with that. Maybe not the simplest, but once you implement them, they'd be done, and you wouldn't lose all those features.

When I was teaching at the college level, about 10 years ago or so we were told that it was no longer acceptable to post students' grades outside office doors even if code numbers were used instead of names. FERPA was cited.

We also got the memo that you couldn't return papers by passing them back but had to hand them to students individually, even if the grade didn't appear on the front page.
posted by not that girl at 2:36 PM on November 16, 2011

It's so odd this is coming from a law passed in 1974. I went to school in the late 90's and we had stacks of homework and such.

Is it just that years upon years of "what ifs" are building into wackiness?
posted by smackfu at 2:37 PM on November 16, 2011

So by the same interpretation, putting up pictures that children draw around the room or in the hallways (or displaying projects, posters) would be a violation?

Probably not. Students can even grade each others work (long in dispute) as long as their education record isn't compromised by an agent of the school:

In a 9-0 ruling, the Court in Owasso Independent School District v. Falvo held that students do not act as agents of the school when they grade their peers' work, a clarification that could be helpful to student journalists in the future.

The Court ruled that classroom peer grading does not constitute an "education record," and does not violate the federal Family Educational Rights and Privacy Act (FERPA) -- at least not until after the grades are recorded in a teacher's grade book. The 1974 act, also known as the Buckley Amendment, penalizes schools for releasing student "education records" without parental consent.
posted by Brian B. at 3:08 PM on November 16, 2011

... hat tip to comp.risks:

Sun, 13 Nov 2011 13:39:49 -0800 (PST)
(((((( Lauren Weinstein's Blog Update: The Coming Fascist Internet ))))))
http://lauren.vortex.com/archive/000911.html
posted by hank at 3:10 PM on November 16, 2011

If I were a mischievous lawyer, I would "discover" that FERPA mandates teachers can't use students' names in classroom conversation, and that students in a classroom aren't allowed to look at each other.
posted by AugieAugustus at 3:11 PM on November 16, 2011 [1 favorite]

Does this mean that my alma mater law school probably shouldn't post the SSN of everyone who failed the bar exam on its front door?

(I'm guessing FERPA wouldnt apply since the bar exam isn't administered by the law school, but stil....)
posted by webhund at 3:30 PM on November 16, 2011

I wonder if it was just that someone at Georgia Tech got tired of keeping the swiki server up. Some old macine running some app setup by someone who is no longer there without a clear owner. You know a "FERPA" issue.
posted by humanfont at 4:46 PM on November 16, 2011

Some thoughts from Jim Groom, noted academic blogging evangelist.

I'm hunting for more info. Might do a G+ Hangout on the subject tomorrow.
posted by doctornemo at 5:03 PM on November 16, 2011

I have to wonder if this isn't some administrator within GT using FERPA to assert control over a portion of (or person in) the Distance Learning piece of the university. Which, if it's anything like our Distance Learning program, is a growing entity that everyone seems to want to control and/or profit from. That and a lawyer who needs to grow some when it comes to student complaints. If I were a GT admin, I'd be more worried about a breech of contract with the professors whose courses were summarily cancelled without notification.
posted by madred at 5:31 PM on November 16, 2011

We have to keep the fact that our students is learning a secret.
posted by madcaptenor at 9:23 PM on November 16, 2011

Interestingly I never heard of FERPA until a week ago, when I read an old AskMe queztion from a disabled student asking if his privacy was violated. The opinion of all the FERPA experts on the thread was that yes, it was, and this was such a bizarre stretch of a privacy violations that I'm not surprised to see an university going nuclear because they're afraid they don't comply.
posted by falameufilho at 10:15 PM on November 16, 2011 [1 favorite]

That was the first time I heard of it it too, falameufilho, so I was really surprised to see it was such an old law.
posted by smackfu at 5:39 AM on November 17, 2011 [1 favorite]

A possible explanation for this weird legal spasm is that some/many universities are self-insured, so they'll have to pay any damages awarded in a suit. This makes them irrationally cautious about anything related to the law and liability.

An example: I work in higher ed IT. In our data center, we have a raised floor that leave the ceilings about seven or eight feet high. Someone saw that we had a stepladder for reaching the top of our equipment racks, and they made us all take OSHA ladder safety training. You know, with a video about how to climb those caged ladders on the side of smokestacks, that sort of thing. There was even a quiz. Let the record show that we don't have any smokestacks on campus anywhere, much less in the Data Center.
posted by wenestvedt at 9:45 AM on November 17, 2011 [5 favorites]

GA Tech has released a statement:

Put simply, FERPA prohibits the release of student names in connection with any particular classes in which they have been enrolled, and this connection can be either explicit or reasonably inferred.

posted by pwnguin at 9:33 AM on November 18, 2011