By Richard Rainsberger
Richard Rainsberger, a former registrar, is a nationally recognized authority on the Family Educational Rights and Privacy Act (FERPA). He has authored publications on FERPA and conducted FERPA workshops for more than 20 colleges, universities and professional organizations. He has been a consultant on FERPA for state educational authorities.
Article from “The Successful Registrar,” Vol. 7, Iss. 2,
2007 LRP Publications.
OK… so we agree that letters of recommendation may have FERPA implications. What should we tell these letter writers that will keep their recommendations FERPA-compliant?
First of all, any person who writes a letter of recommendation needs FERPA training.
Second, a person writing a reference letter is free to include his personal observations/assessments of the student as long as those observations/assessments cannot be identified as an education record. (From FERPA 101: An education record is 1) personally identifiable to a student; 2) maintained by the institution; and 3) none of the following: sole possession notes, law enforcement unit records, employment records, medical treatment records, alumni records. 34 CFR 99.3).
Letter writers can include such subjective observations as “stellar student,” “takes part in class discussions” or “mediocre performance.” Examples can be included. These statements are not education records. They come from the mind of the writer.
Here is a statement from a reference letter:
“I have known Jane for the past year. She has taken three history courses. Her participation and interaction in these classes, plus her knowledge of the subject, have been well above average. She exhibits a natural ability to conduct research independently and arrives at conclusions that demonstrate significant intellectual depth.”
This is a perfectly appropriate and FERPA-compliant statement that was crafted without obtaining the student’s written permission.
However, if the letter includes a statement that the student had a 3.30 grade point average in the writer’s classes, or the student got C’s, this release of information would violate FERPA. Why? The GPA and “C” comments are personally identifiable information and are maintained by the institution. They’re education records. That makes them subject to FERPA. Also, GPA or grades cannot ever be directory information. Since the writer did not obtain the student’s written consent first, she has violated FERPA.
Third, the letter of recommendation, when completed, becomes an education record. Both the paper copy and e-file are education records… and it makes no difference where they are filed. Since FERPA grants the student the right to inspect any education record, there is also an unwritten obligation to notify the writer of this right.
In this latter instance, the placement office, or student, should initially provide each writer with the knowledge that the student has either waived, or not waived, his right to subsequently review the letter. This knowledge may influence what the writer includes in the letter. It may persuade the person to whom a reference request was made to politely decline to write the letter. Unfortunately, letter writers do not have the same rights that students have in the letter-writing process.
Likewise, if no placement file is involved and the writer keeps a copy of the letter, the writer should ask the student to complete a form similar to that which appeared in the FERPA Doc’s column last month. This provides the student and the writer with a clear understanding of whether the letter can be reviewed by the student.
Fourth, since placement offices have expertise in writing reference letters, check that office to determine if it follows these guidelines. Most placement offices will have FERPA-compliant procedures and forms in place already. And they usually respect the interests of both the student and the writer.
Therefore, before a “school official” releases any education record to a third party via any means (this includes letters of recommendation) without the student’s written consent, it must either be something the institution has identified as directory information or must be disclosable under one of the exceptions to written permission found in 34 CFR 99.31.
Nothing in 99.31 permits releasing non-directory information in a letter of recommendation to a third party without the student’s written consent.
Reference letter writing is part of the American collegial culture. However, in the strictest technical sense, every time one of these letters is written, it becomes a potential release of education records.
Take the initiative. Provide training in FERPA responsibilities in writing letters of recommendation. Eventually some student may decide that her FERPA rights have been violated. Before that happens, see that your college has informed both letter writers and students about their FERPA responsibilities and rights.