People working in institutional education settings worry, rightly, about inadvertently violating Federal standards for student privacy when adopting new or cutting-edge technologies. In reality, educational technologies like digital portfolios do not violate the Federal Education Rights and Privacy Act (FERPA) and a variety of “cutting-edge academic support methods are perfectly lawful” (Schulze, 2009). The matter of whether pedagogical choices by instructors that include peer group sharing of work, as in the case of establishing group portfolios and co-created work and grading, should not constitute a FERPA violation under a recent Supreme Court ruling. According to Schulze (2009), “The tactic of having classmates grade each other’s papers is a pedagogical method intended to present the learned material in a new context” (pg. 227), and it is not the intent of Congress to restrict pedagogical choices by instructors.
However, records of student work maintained by a central custodian, such as a school registrar or an institutional steward might be construed as an educational record subject to FERPA (Schulze, 2009), particularly at the level that they are aggregated beyond individual assignments. Schulze suggests that based on the Gonzaga University v. DOE case, FERPA, although vague and complicated to understand, leaves the interpretation to educational experts like the Department of Education (rather than courts) and is not intended to undermine teaching choices that “disclose innocuous information implicitly and directly” (pg. 232).
Bottom line? Applied to the case of digital portfolios, FERPA can be largely managed through the students’ ability to consent to share information, for instance by opting to share their information in a group portfolio, rather than having the instructor or institution make such selections. Self-publishing of academic work by a student does not constitute an institutional transfer of information to a third party if a student retains control over the public disclosure of their educational achievements, assignments and the like.
Schulze, Jr. L. (2009). Balancing Law Student Privacy Interests and Progressive Pedagogy: Dispelling the Myth that FERPA Prohibits Cutting-Edge Academic Support Methodologies. Widener Law Journal, Vol. 19, p. 215.