FERPA Schmerpa, the LMS and open ed

I’ve been involved in a discussion with an online teaching colleague about FERPA and its implications. Periodically, FERPA issues emerge, usually at the administrative level. I’ve seen this at a number of institutions of higher ed. Faced with a law that seems to protect student privacy (even when it allows, in my opinion, violations such as the release of ones address in a directory), colleges tend to take a draconian approach to prevent lawsuits (and loss of federal funding, though this has apparently never happened). Everything educationally open one might want to do could be a potential FERPA violation, including blogging, content creation, bookmark sharing, and commenting on the open web. My colleague’s concern in particular was whether it was OK to post evaluative instructor comments on a student’s open blog.

Image cc by xiaming at Flickr

In the course of our discussion we looked at a discussion about FERPA and Web 2.0, plus some campus policies and checklists (like this one from Oregon and this one from Winona and this from University of North Florida) as well as the law itself. Since I’ve been teaching for 20 years, I’ve heard several times that I must not post grades where students are identifiable on the list, and I know that some colleges say secret names are OK but others say not. Colleges differ in how they interpret FERPA. Most of the interpretations date from the pre-internet era, though some like the Virginia Commonwealth University have an updated version specific to online — it’s not very different, though.

I have not worried too much about FERPA since I discovered the 2002 Supreme Court decision in Owasso Independent School Dist. No. I011 v. Falvo, where the Oyez site notes:

In a unanimous opinion delivered by Justice Anthony M. Kennedy, the Court held that Peer grading does not violate FERPA. The Court reasoned that peer-graded items did not constitute education records protected by FERPA until a teacher collected the grades on the students’ papers or other items and recorded the grades in the teacher’s grade book. In reaching its conclusion, the Court noted that peer-graded items were not “maintained” within in the meaning of FERPA, as the student graders only handled the items for a few moments. Moreover, the Court stated that each student grader, by grading assignments, did not constitute a person acting for an educational institution within FERPA.

As far as I’m concerned, this covers most of the things I do that might be perceived by someone as problematic.

In all my online classes, every week, students post evidence in a forum, then create a thesis and post it. I do “evaluate” these theses in a sense, though I do not “grade” them, by commenting on the theses of several students on the forum, noting which are factual and which interpretive and why. I occasionally ask students to take on a colleague’s thesis and say how it could be improved.

Is this peer grading? It could be, except that the comments are not “grades” — they don’t “stick” nor are they recorded individually in the gradebook. But in student self-evaluations (the private part with just the student and me), students comment on their own achievements and I put a grade on the combined effort of eight weeks of forum work.

I frankly don’t see a whole lot of difference between this and what I do in an my on-site class when groups do presentations and I comment aloud on how they did, strengths and weaknesses, to expand the discussion. It’s instant feedback, but the purpose is to keep all of us on the same subject at the same time. If I gave them feedback and asked questions later and privately, only that particular group would learn, and by then the class will have moved on. Sometimes students peer grade the presentations, and I post every group’s combined “grade” and comments, although these do not translate to anything formal since I don’t grade groups at all except as part of a student’s participation grade.

To me, posting/presenting and commenting is open work and open education — for my online classes, this process is behind a wall right  now only because I’m in a Learning Management System (Moodle), but it shouldn’t be. If I instead used a Ning, I could set it to be closed, “just for students”, but I’d like everyone to see the work. This is where I’m heading with online teaching — open courses. Learning should be open — if it is, people will be less afraid to try out their ideas, absorb and respond to criticism. They will also be part of a larger community. That’s how the web works, and these are important skills for my students’ careers. But much of this approach could be seen under the formal rules as FERPA violations, so do I dare open things up?

Then it occurred to me: perhaps using outside websites gets around some FERPA foolishness.

Image cc by h.koppdelaney at Flickr

If I am using a college-supported LMS, clearly it could be argued that the entire course is a record maintained by the institution, especially if we are archiving whole classes. In fact, that seems to make an online class more FERPA-protected than an on-site class, since for an on-site class the instructors alone maintain all records except the final grade, in piles of gradebooks and old assignments in their office. FERPA has been around a long time, yet no one has ever asked me about the records I maintain for on-site classes. But an online class is stored, the whole thing, often by the institution.

So here’s the cool thing. If we are having students use Blogger and are commenting on their posts, for example, how can it be claimed that it is “maintained” by the institution? I can see the privacy violations, of course, that many try to solve by allowing students to use aliases, but I can’t help but wonder whether using outside technologies don’t actually protect us from FERPA violations!

In my totally non-legally trained fly-by-night interpretation of FERPA, the only thing that needs to be behind a wall is the gradebook. Engrade (or a pay-to-play online gradebook) can do that, so no problem. Obviously this is not the first time I’ve posted on the issue of why bother with an LMS (must be something about April!). But in seeing those interactive websites we love as not only a place to learn but a place where the very lack of institutional control might be a benefit to us and our institutions, I think I’m making strides here.

3 thoughts to “FERPA Schmerpa, the LMS and open ed”

  1. Even more liberating than Owassa is Gonzaga v Doe, which holds that FERPA does not create a personal right or private cause of action–in other words, in the event that a faculty member or college DOES violate FERPA (even intentionally and maliciously!), the student has no right to sue. The only remedy for FERPA violations is withholding of funding for schools that have a policy or practice of disclosing private information.

    Combined with Owassa, which limits what types of information are even considered “academic records,” faculty pretty much have nothing to worry about from FERPA. Don’t get me wrong–I’m not recommending rampant disclosure of student information, just noting that the risk to an instructor from having students participate in open activities like blogging or Wikipedia editing is so low as to be non-existent.

    Decide whether to post evaluative comments on student blogs for pedagogical reasons, not out of fear of litigation.

  2. Thanks for that case, Ted! It’s not often I find my interests on the opposite side of Ginsburg and Stevens. Quite bizarre, but potentially quite useful! 😉

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