U.S. Department of Education Issues Guidance Regarding the Applicability of FERPA to Reporting Requirement in Illinois Concealed Carry Act

On April 19, 2018, the U.S. Department of Education issued guidance on the applicability of the Family Educational Rights and Privacy Act (“FERPA”) to the reporting requirement in the Illinois Concealed Carry Act (“CCA”).

The CCA includes a provision mandating that certain school administrators report to the Illinois State Police any student they believe poses a “clear and present danger” to “himself, herself, or to others, within 24 hours of the determination.” A “clear and present danger” is defined as someone “demonstrate[ing] threatening physical or verbal behavior, such as violent, suicidal, or assaultive threats, actions, or other behavior, as determined by a . . . school administrator [or certain other qualified individuals].”  The clear and present danger report (“CPDR”) requires the inclusion of detailed information on the individual, including names, address, phone numbers, date of birth, and a narrative of facts, among other information.

FERPA prohibits educational institutions from releasing a student’s education records without a guardian’s written consent, or unless otherwise authorized by law.  If a CPDR was filed regarding a student, some or all of the information required to file the CPDR would include education records as defined by FERPA, and thus it seemed that one law was requiring a violation of the other, and vice versa.  The April 2018 guidance letter confirms that, in most circumstances, a CPDR will be considered an education record as defined by FERPA, as it directly relates to the student and is maintained by an educational institution.

The April 2018 guidance letter is intended to resolve the tension between FERPA and CCA, clarifying that “personally identifiable information from students’ education records may be disclosed if certain conditions are met.” The bottom line is that a CPDR filed to report a student would generally not violate FERPA for one of two reasons.

The first and primary justification schools can rely on to file a CPDR without fear of violating FERPA is the law’s exception permitting non-consensual release of education records “in connection with an emergency [to] appropriate persons if the knowledge of such information is necessary to protect the health and safety of the student or other persons.”  Put simply, the Department of Education defers to the school administrator’s judgement as to whether a student poses a “clear and present danger” sufficient to file a CPDR, and if so, the same clear and present danger will generally also constitute a health and safety emergency under FERPA.

Second, if the CPDR is drafted solely by a “law enforcement unit” within the school, as permitted by the CCA’s provision allowing a school administrator’s “designee” to file a CPDR, then the CPDR would not be an educational record.  This is not the case, though, if the CPDR includes any protected information gleaned in the individual’s capacity as a school official, rather than as a law enforcement unit.

Lastly, the April 2018 guidance notes that, although the fact that a CPDR was made to the Illinois State Police should be recorded in the student’s record as a third-party release, the name of the reporting administrator does not need to be included in that record of release. If the reporting administrator’s name is included, however, it cannot be redacted if the student’s guardian asks to review the student record.

This guidance better delineates the extent of FERPA obligations with regard to the CCA.  It should be noted, however, that in addition to FERPA, the Illinois School Student Records Act and the Local Records Act govern access to, maintenance of, and destruction of student records in Illinois.

For your questions regarding student records, please contact Bennett Rodick or Jessica Nguyen.

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