FERPA and digital education

***UPDATE, 15 AUG 2015:

Sadly, this short post recommits the symbolic violence of settler colonialism. The digital natives metaphor needs so badly to be disassembled that “running with the metaphor,” articulating natives with spears as though they’re stuck in a time far past, fills me with a deep sense of shame. But it also makes me overwhelmingly grateful for the fantastic feminists and anti-colonial activists and academics that have helped me grow as a person over the past years. Consider this comment a bit of self-reflexivity sorely missing from the original post.***


It’s always interesting to me the ways that court cases bring to surface, or more appropriately reminds us, that laws are for the protection of institutions and not people. Sometimes this is terrible, and sometimes it works in our favor. That’s the case with a recent FERPA debate/can of worms that the UofO opened up.

Many [private, well-funded] universities have recently begun using blogging and other social media to give students an essential tool: the ability to relate scholarly information to a wider world in plain speak… or type. Gardner Campbell, who spoke at UO a few weeks ago, is one such example. He has seemingly made an interesting meta-pedagogic move: his undergrad/freshman intro course to media has been about training students how to really use media in the classroom, while also being a space for his faculty development seminar to observe the use of new media theory as a pedagogical tool. Coming from a discipline filled with dinosaurs and troglodytes [there is a pun here :D], I really like this way of killing two birds of paradise/ignorance with one large, digital stone.

Mark Auslander and I started doing similar work at Brandeis University in late 2008. The premise was simple- if we want kids to stop checking out of class when their laptops open, we have to teach them how to actually use the technology for something other than distraction. This isn’t at all a novel idea technically, it simply works from a deconstruction of the notion that ‘digital natives’ know the best way to throw spears. To play the metaphor, we wanted to teach them not necessarily how to throw the spear- that is their decision and moral imperative-, instead we wanted to teach them how to make decent spears for throwing.

Fast forward to my move to University of Oregon. In an anthropology course on folklore and feminist critique, I attempted to use wikis for the same purpose. It failed miserably on multiple fronts- most of all because the institution does not provide the intellectual infrastructure students’ need to engage with, and not be distracted by, the internet. But this comes from a wider, more interesting deferment to, and hiding behind, what is misunderstood as ‘THE LAW’.

FERPA. That evil document we are trained to fear as instructors. You dot every i, cross every t, etc. so that you can be in compliance. And the internet is no exception. Having a discussion with a faculty member in my own department, who shall remain nameless, s/he suggested that what I was doing with wiki was counter to FERPA. In fact, I would later find out, similar initiatives ACROSS THE UNIVERSITY had been blocked because of (what was understood as) FERPA guidelines for student privacy. That is, what is interpreted as student’s protection of privacy as outlined in FERPA.

Now the interesting question is, who does FERPA actually protect and how does it do it? In a recent PR catastrophe, the University of Oregon has blocked a public records request from the Eugene Register Guard. The records were regarding a new NCAA investigation of the athletic department here, which apparently contained information about specific students. The University attempted to use FERPA to block said request. A similar move was made in May by Florida State University, and the Florida Supreme Court was not having it (SEE HERE). The court ruled that despite the shorthand way that it is often oversimplified, FERPA does not instruct schools to reject open-records requests. “By its terms, FERPA does not prohibit the disclosure of any educational records. Instead, it operates to deprive an educational institution of its eligibility for federal funding if its policies or practices run afoul of the rights of access and privacy already protected by the law.” What’s more, the law only covers those documents that are ‘directly connected to students by way of measure of aptitude’, ie those that are already graded. In the 2002 Supreme Court decision in Owasso Independent School Dist. No 1011 v. Falvo, 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.

So, for those of us who are attempting to teach students that the academy is not the last frontier of intelligentsia, this is very important. The faculty member I previously mentioned suggested that students could, and must be given the right to, refuse to blog/wiki based on FERPA. This, however, is wrong- students are not protected under FERPA, they are simply a unit of measure, a yardstick if you will, to measure the degree to which the university is compliant with already existing privacy and accesslaws established for their protection (note, not for their convenience).

Thus, opening up the educational process beyond the academy by asking/making students make their work public is by no means restricted by FERPA. Neither the university nor a student can use FERPA as a way to wiggle out of becoming more transparent, and neither should do it as a way to wriggle out of the responsibility to learn how to effectively use digital tools (that just so happen to run absolutely counter to the corporate model of academia).

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