In the Name of Watergate: Returning FERPA to Its Original Design
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This article seeks to proffer an improved definition for “education records” without altering the legislation's original design. Part I provides a historical account of Watergate's climate to illustrate why privacy rights blossomed during the 1970s and provided an atmosphere conducive to the passage of FERPA. Part II details FERPA's legislative history. Part III presents the statute's current definition of “education records” and evaluates how courts interpret FERPA. Part IV suggests a modernized definition that considers the computerization of education and, correspondingly, education records. The section begins with a comparison of FERPA and the Privacy Act of 1974. Thereafter, it exposes how schools are misusing FERPA to their advantage rather than protecting student privacy and parental access to records. Part IV proceeds to focus on judicial treatment of e-mail communications in the education setting, asking whether e-mails that personally identify students are truly “education records” under FERPA. The conclusion to Part IV describes how we can return FERPA to its original design. Part V calls on Congress to address this issue and improve student privacy protections; inertia and inaction are an invitation to return to the days of Watergate.
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