Why are recs absolutely necessary at some schools, while not expected at others?

[adpiucf]

Hartofsec, this is incorrect. FERPA does not make the guidance counselor liable in this scenario. The only way to hold her liable under FERPA in your hypothetical is where some busy body alumna finds out Susie Q is going to SEC University and decides to contact the high school to get Susie's education records for whatever reason AND THE COUNSELOR GIVES THEM TO HER. She can call the counselor to get information about Susie's honors and awards without any FERPA violation. FERPA doesn't prevent the counselor from discussing her mental impressions of the student. She just can't release any written notes in the student's advising folder. Private notes, campus police records, and medical records are not education records under FERPA.

FERPA governs the right of education records. Parents hold that right until the child turns 18. Then the child, now an adult holds that right. The child is putting their education records at "issue" for the purpose of going through recruitment and has allowed Panhellenic and the sororities to view their transcripts. FERPA means that a parent can't call up their adult child's college later demanding to know how they're doing in Organic Chemistry. If the student to consents to a background check, FERPA does not apply.

FERPA prevents the school from releasing information about a student's "education record" without written consent of the parent/child above age 18. However, FERPA allows schools to disclose those records, without consent, to certain parties or under some conditions, including schools where a student is transferring, to comply with judicial order/subpoena, etc. Schools may disclose, without consent, "directory" information such as a student's name, address, telephone number, date and place of birth, honors and awards, and dates of attendance. There must be notice of the disclosure, and notice is considered sufficient by FERPA if students are notified of the possibility of such disclosure occurring via their student handbook or a public notice informing them about FERPA.

A guidance counselor's actions are imputed to the school. A guidance counselor may observe FERPA and disclose this directory information. Moreover, the student matriculating has provided written consent for the university and Panhellenic to view their education record. There is no violation here for a guidance counselor to provide directory information to an alumna writing a rec. The alumna has also been provided with the student's education record by the student herself.

There is no legal privilege here or liability to the counselor/school when you, the subject of the matter, put that something (your records) at issue for consideration. You've consented.

ETA: Also, if we're asserting liability, you also have to consider that liability means lawsuit. A lawsuit requires actual injury. Where are you suing? State court? Federal court? Either way, there's no FERPA violation, so let's default to state court. What is the counselor liable for? Defamation or invasion of privacy? This is unlikely unless the counselor made patently false statements about the student or violated her reasonable expectation of privacy, and again, the student has already put her grades at issue by going through recruitment and consenting to have her education records verified. What is the measure of damages? The sorority can't be forced to take her as a member, and she'll have to prove money damages as a result of her damaged reputation to that sorority chapter for the no-rec? It all seems highly unlikely that any money damages can be assessed. If there's no remedy available, the court can't redress the grievance and will conclude there is no harm. If the counselor gets disciplined or fired for any of this, she does have a legal remedy that can be addressed for wrongful termination because she has done nothing wrong.

While we're at this, just want to make sure no one is taking this as legal advice.