FAMILY EDUCATIONAL RIGHTS AND PRIVACY ACT (FERPA)

SOLOMON AMENDMENT COMPLIANCE

MEMORANDUM

The Commonwealth of Massachusetts
MASSACHUSETTS COMMUNITY COLLEGES

OFFICE OF THE GENERAL COUNSEL

MASSACHUSETTS COMMUNITY COLLEGES
c/o MIDDLESEX COMMUNITY COLLEGE
SPRINGS ROAD, BUILDING 2
BEDFORD, MASSACHUSETTS, 01730
TELEPHONE: (781) 275-9400
FAX: (781) 275-2735

TO: All Community College Presidents, Janice C. Motta, Executive Officer

FROM: Kenneth A. Tashjy, Staff Attorney

DATE: December 4, 1998

RE: Department of Defense's FINAL RULE for Accessing Student Record Information by Military Recruiters

On April 16, 1998, I issued a memorandum discussing our Office's recommendations regarding compliance with the Solomon Amendment. The Solomon Amendment, which was contained in the Omnibus Consolidation Appropriations Act of 1997, states that "no funds available [through] the Departments of Defense, Transportation, Labor, Health and Human Services, Education, and Related Agencies may be provided ... to a covered school that has a policy or practice that either prohibits, or in effect prevents, the Secretary of Defense from obtaining, for military recruiting purposes, entry to campus, access to students on campus, access to directory information on students or that has an anti-ROTC policy."

With the passage of the Solomon Amendment, a compliance conflict arose between it and the Family Educational Rights and Privacy Act (FERPA). . Specifically, the production of student directory information in response to a Solomon request might cause an institution to unintentionally run afoul of its own FERPA Policy. Further, Solomon was silent on a school's responsibility to comply with a recruiter's request for student directory information when a student has requested that none of his/her student directory information be released to any requesting third party, as is a student's right under FERPA. In order to provide some guidance to schools on these issues, the Department of Defense has recently issued its Final Rule for compliance with the Solomon Amendment. The highlights of the DOD's Final Rule are as follows:

• The term "directory information" as used in the DOD's Interim Rule will be replaced with "student recruiting information." For purposes of the Solomon Amendment, "student recruiting information" includes: name, address, telephone, and if known, students' ages, levels of education, and majors. Unless specifically requested by a student in the manner prescribed under FERPA (see third bullet below) to do otherwise, this information must be disclosed in response to a Solomon request regardless of whether a school designates only some (or none) of this information as student directory information under its FERPA policy. The Rule provides that the Department of Education "will not consider provision of responsive student information as required under the [Omnibus] Act and this rule to violate FERPA."

• Under FERPA, a student may request that some or none of his/her student record information be designated as directory information, thereby preventing its disclosure to all requesting third parties. The Department of Defense will honor such a student request so long as it is "even-handedly applied to all prospective employers seeking information for recruiting purposes." Further, even in those cases where a student requests that only some of his/her student information not be designated as directory information, the Department of Defense will honor the request by not seeking student recruiting information for that student.

• When repeated requests to obtain student recruiting information are unsuccessful, the DOD agency concerned must seek written confirmation of the school's present policy from the head of the covered school through a letter of inquiry, allowing 30 days for response.

• The Secretary of Education has determined that schools which fail to comply with a Solomon request may be ineligible to receive funds from the following programs: the Federal Supplemental Educational Opportunity Grant Program (Title IV, Part A, Subpart 3), the Federal Work-Study Program (Title IV, Part " C), and the Federal Perkins Loan Program (Title IV, Part E).

Lastly, as I also mentioned in my memo of April 16, pursuant to FERPA, whenever personally identifiable student information, as opposed to directory information, is released, a record must be kept in the student's file that identifies the party who requested the information, and the "legitimate interest" the party had in requesting or obtaining the information. Recognizing that in some cases (See Bullet 2 above) a school will release personally identifiable information in response to a Solomon request, and that compliance with FERPA's record keeping requirements could pose an onerous burden for schools, the FERPA Compliance Office had suggested that providing students with a "general" notice of such a disclosure would suffice. Accordingly, I previously prepared a NOTICE TO ALL STUDENTS of the release of student information in response to a Solomon request, as well as inserted additional language regarding the same in the Model Notification of Rights Under FERPA for Postsecondary Institutions policy. Based on the Final Rule, I have further revised these materials and again strongly recommend their use. If you have any questions regarding these issues, please contact my office.

NOTICE TO ALL STUDENTS

THE COLLEGE HAS RELEASED STUDENT RECRUITING INFORMATION TO THE DEPARTMENT OF DEFENSE

Date of Student Recruiting Information Request:

Requesting Department of Defense Agency:

Date Student Recruiting Information Released:

On the above-referenced date, the College received a request for student recruiting information from the above-referenced agency of the Department of Defense, pursuant to the Omnibus Consolidated Appropriations Act of 1997 (Solomon Amendment). The requested student recruiting information included: names, addresses, and telephone listings; and if known, students' ages, levels of education, majors.

Unless a parent or eligible student exercised his/her right, in accordance with the Family Educational Rights and Privacy Act, to refuse to permit the College to designate some or all of the student's record information as directory information, the College disclosed to the Department of Defense the aforementioned student recruiting information on the release date cited above.

This Notice of the College's compliance with the Omnibus Consolidated Appropriations Act of 1997 shall be posted in a conspicuous location in the College's Registrar's Office for one academic year. Thereafter, said Notice will remain on file in the Registrar's Office. Further, this Notice is intended to satisfy the record keeping requirements established under Section 99.32 of the Family Educational Rights and Privacy Act.

COLLEGE OFFICIAL: ______________

DATE POSTED: ______________

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