[Hartofsec]

Originally Posted by Low C Sharp

This lawyer disagrees with any reading of FERPA that limits its application to the sharing of written records. I have written FERPA releases for a major university. If a school employee's "knowledge of that student" is based on the fact that she gets to see the student's academic/disciplinary records in the course of her work, then FERPA applies to her "knowledge" and the personal opinion resulting therefrom. For example, if in the course of my work as a guidance counselor (or teacher or principal), I see that Suzy was internally reprimanded for cheating junior year, it is both unethical and a FERPA violation for me to then tell others orally, "Suzy is untrustworthy, don't bid her." There doesn't have to be any written record shared, or any mental health guidance relationship with Suzy, for that rule to kick in. If you only know she's untrustworthy because you were allowed to see her confidential records, you have to keep it to yourself.

Whether someone would actually be sued, in practice, is a different question. Both HIPAA and FERPA are violated every day around family dinner tables, and that's never going to lead to a lawsuit. But I think it is wrong to violate this rule in the recruitment context whether a lawsuit is likely or not. If I'm counsel to the school, I want everyone keeping confidential information inside the institution, period. The "Suzy is untrustworthy" example above would be a firing offense at the university where I've worked.

Thank you, Low C Sharp -- appreciate your legal expertise based on experience with FERPA.
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