January 22, 2002
BY FACSIMILE & FEDERAL EXPRESS
Jane Nichols, Chancellor
University and Community College System of Nevada (UCCSN)
2601 Enterprise Road
Reno, NV 89512
Dear Chancellor Nichols:
In previous discussions with you, we objected to UCCSN's disclosure of information about current and former students, donors, faculty and staff to credit card companies. Regarding both current and former students, in particular, we made plain our belief that the sale of certain information was a violation of the Family Educational Records and Privacy Act (FERPA). We appreciate the concerns you have expressed about the negative impact of these practices on privacy, and your intention to propose policy changes that would protect private information about current students. We write: 1) to demand that UCCSN stop the sale of information regarding current and former students in violation of FERPA; and 2) to encourage you to extend your proposed policy changes to protect data concerning donors, faculty and staff.
Specifically, we understand that the University of Nevada Reno currently provides the names and addresses of former students to MBNA, a large independent credit card issuer based in Delaware. In exchange, MBNA provides the university with a portion of the profits on credit card purchases; the university received $58,000 under the program last year. See "Nevada regents to review selling student lists to credit firms," Associated Press, 12/26/01; "ACLU questions privacy in UN Reno donor system," Las Vegas Review-Journal, 1/09/02. We also have information which suggests that the Community College of Southern Nevada may also be in violation of FERPA.
FERPA requires universities who receive federal funds to protect the privacy of various categories of student information. FERPA prohibits the release of "personally identifiable information" without the written consent of the student (or the student's parent if the student is a minor). 20 U.S.C. º1232(g)(b)(1)-(2). "Personally identifiable information" includes the student's name and address. 34 CFR º 99.3. FERPA clearly protects this information for current and former students when the information was obtained during the student's tenure.1
FERPA allows universities to make public certain categories of personally identifiable information only if the university previously designates that information as "directory information," notifies students of the policy, and allows students to opt out of disclosure.2
The FERPA policy of the University of Nevada Reno (UNR) is published in its 2001-2002 Catalog, and is entitled "Regulations for Students Records." That policy does not designate addresses as "directory information."3 See Attachment A. Thus, the addresses of current and former students of UNR are clearly protected by FERPA against public disclosure. UNR's sale of the names and addresses of former students to MBNA is therefore in direct violation of FERPA.
We understand that the Regents of UCCSN will discuss the system's privacy policies and practices during its January 24-25 meeting in Las Vegas. We ask that the Regents do the following:
* Provide full information about the current privacy practices of all UCCSN campuses regarding personally identifiable information for current and former students, donors, faculty and staff;
* Direct all UCCSN campuses to stop selling information to credit card companies about current and former students, donors, faculty and staff;
* Adopt a uniform system-wide FERPA policy clarifying that UCCSN will not disclose without prior consent the addresses, telephone numbers, or other personally identifiable information of current and former students, donors, faculty and staff.
We are confident that the Regents will recognize the importance of protecting privacy and will amend its current policies and practices accordingly. If UCCSN does not cease its FERPA violations immediately, the ACLU is prepared to file a formal complaint with the Secretary of Education of the United States or to proceed with other appropriate legal action. We look forward to your prompt response.
Sincerely,
Gary Peck, Executive Director
American Civil Liberties Union of Nevada
Ann Beeson, Staff Attorney
American Civil Liberties Union
National Legal Department
cc: Mark Alden
Jill Derby
Thalia Dondero
Dorothy S. Gallagher
Douglas Roman Hill
Linda Howard
Tom Kirkpatrick
Howard Rosenberg
Douglas Seastrand
Steve Sisolak
Tom Wiesner
1 See 20 U.S.C. º1232g(a)(6) ("[T]he term 'student' includes any person with respect to whom an educational agency or institution maintains education records or personally identifiable information, but does not include a person who has not been in attendance at such agency or institution."). See also 34 CFR º99.3 (For purposes of the restriction on release of personally identifiable information, student is defined as "any individual who is or has been in attendance at an educational agency or institution and regarding whom the agency or institution maintains education records.")
2 20 U.S.C. º1232(g)(b)(1); º1232(g)(a)((5)(A)-(B) ("Any educational agency or institutional making public directory information shall give public notice of the categories of information which it has designated as such information with respect to each student attending the institution or agency and shall allow a reasonable period of time after such notice has been given for a parent [or student] to inform the institutional or agency that any or all of the information designated should not be released without the parent's prior consent.").
3 "Directory information is considered public and may be released without written consent unless specifically prohibited by the student concerned. Data defined as directory information includes: student names, major fields of study, student participation in officially recognized activities and athletics (including Greek organizations), weight and height measurements for members of athletic teams, dates of attendance, degrees and awards received, and listings of the most recent educational agency or institution that students have attended." Attachment A (UNR Regulations for Student Records, Confidentiality and Release of Information).