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Please Talk Amongst Yourselves

Introduction

When university faculty and staff members encounter a student who is distressed, disruptive, and/or dangerous, they frequently want to communicate what they know or believe to someone (e.g., a department chair, campus counselor, police, etc.) who can provide them support and guidance in dealing with the situation. At the same time, faculty and staff may also be concerned that the laws governing student privacy prevent them from disclosing pertinent information about the student. Not having an available, accurate answer to the question "To whom can I speak and what information can I share?" has often prevented faculty and staff who are concerned about unusual or problematic student behavior from seeking out assistance from other campus resources.

FERPA: The Privacy Law Protecting Student Information

Signed into law during the Ford Administration, The Family Educational Rights and Privacy Act (FERPA) is the federal statute that governs the disclosure of student records and information. At the K-12 level, FERPA provides parents with the right to access and disclose information from their children's education records. When a student turns 18 years old or enters a college or university, these rights under FERPA transfer from the student's parents to the student.

An Answer to the Question "To Whom Can I Speak and What Can I Disclose?"

While some members of the campus community (e.g., mental health professionals at the Counseling & Student Development Center, medical personnel at the Health Center) must adhere to very strict standards of confidentiality, other JMU faculty and staff operate under the much less restrictive guidelines in the FERPA law. Under FERPA, there are a number of situations in which faculty and staff may disclose student information. For example, FERPA's disclosure restrictions apply only to information in student education records, not to personal knowledge derived from direct experience with a student. Thus, a faculty or staff member who personally observes a student engaging in unusual, disruptive, and/or threatening behavior is not prohibited by FERPA from disclosing that observation to others on campus.

Further, FERPA specifically allows disclosure without a student's consent to:

  • "school officials" who have "legitimate educational interests" in the information. A school official has a legitimate educational interest if the official needs to have access to student information in order to fulfill his or her professional responsibilities for the University. For example, a counseling center psychologist needs to have the information held by a faculty or staff member relevant to a distressed student's emotional state, and the police need to have information about the dangerous behavior of a student who has threatened harm to another person.
  • "appropriate persons if the knowledge of such information is necessary to protect the health or safety of the student or other persons." Safety concerns warranting disclosure could include a student's suicidal statements, threats against others, unusual and disturbing behaviors, or similar conduct that would reasonably be seen as posing the potential for harm. When possible, the initial disclosure of information should be limited to those campus professionals in the best position to handle such emergencies (e.g., counselors for mental health crises, police for violent behavior). Even if hindsight suggests that the situation did not place the health or safety of anyone at risk, "good faith" disclosures of these sorts are highly unlikely to be deemed a violation of FERPA.

Err on the Side of Disclosing Information

JMU faculty and staff should not hesitate to share student information with or request assistance from other University personnel and departments (e.g., the Counseling Center, OSARP, Public Safety) who are trained to assess and address the distressed, disruptive, and dangerous behavior of students. FERPA does not present an obstacle to these types of disclosures, and the importance of faculty and staff understanding that fact cannot be overstated. Sharing timely, pertinent information with other JMU professionals may be the key to averting future problems and incidents, including those which might lead to fatal conclusions.

Other Resources

Christine R. Williams, FERPA, GLBA & HIPAA: The Alphabet Soup of Privacy, (2007).
Nancy E. Tribbensee, The Family Educational Rights and Privacy Act: A General Overview, (2003).
McDonald, Steven J., ed., The Family Educational Rights and Privacy Act: A Legal Compendium, Second Edition (2002).