CONGRESSIONAL RECORD- SENATE

• Document Type: CREST
• Collection: General CIA Records
• Document Number (FOIA) /ESDN (CREST): CIA-RDP76M00527R000700060001-7
• Release Decision: RIFPUB
• Original Classification: K
• Document Page Count: 8
• Document Creation Date: December 12, 2016
• Document Release Date: November 27, 2001
• Sequence Number: 1
• Publication Date: November 19, 1974
• Content Type: OPEN

PL9 S - 3bD
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1V ober 19, 1974 CONGRESSIONAL RECORD -SENATE S 19607
investment institutions to stimulate slug-
gish productivity merits wider considera-
tion. Canada has already chartered a na-
tional investment corporation; your own gov-
ernment is likewise considering proposals to
infuse new government capital into depress-
ed sectors. We can and must prevent domes-
tic commercial failures from precipitating an
international economic collapse.
Whatever our differing interests, we must
not resort to the destructive "beggar-thy-
neighor" policies of the 1930's. Attempts to
shift disquieting trade deficits from one
country to another --whether through im-
port barriers Or currency devaluation-can
only bring on worldwide depression. We
must promote an orderly economic recovery
for the benefit of the whole family of
nations,
Sixth: Restoring health to our financial in-
stitutions is an urgent objective in the
months ahead. The orderly evolution of
Euromarkets will require concerted action on
the part of central bankers in several areas:
more reliable information on the market's
operations; the development or liquidity
standards to bolster confidence in its institu-
tions; and continued cooperation toward
establishing some international "lender of
last resort."
Seventh: There is a compelling need for
new policies to promote stable, safe and di-
versified investment of oil producer funds. To
dispel present' uncertainty we must devise
uniform guidelines which will apply to in-
vestments by the producing states In our
respective national economies. These guide=
lines must provide consuming nations with
the assurance of continued control over their
own essential financial infrastructures, and,
at the same time, recognize the legitimate
concerns of producing nations in guard-
ing against the real risks of inflation and
currency fluctuations.
Eighth: The Special Council must explore
means of assisting those nations facing seri-
ous liquidity problems as a result of con-
centrated oil producer investment in a
handful of countries and markets. A major
effort-preferably international, but if nec-
essary on a more limited basis--must be
made to encourage direct investment in the
economies of those nations which are In-
creasely threatened by their inability to at-
tract funds in private markets.
Ninth: We cannot overlook the plight of
Joint efforts to build fertilizer plan in
the Persian Gulf deserve careful consi a-
non. The producing nations Cold it
natural gas-which is now being flare and
wasted-as the feed-stock. Industrializ na-
tions could commit the necessary ma wer,
Tenth: We should initiate a revie rf the
changing role of the multinational por-
ation, especially the international com-
panies, and prepare standards of onduct
which will prevent private gain public
expense, promote orderly world merce,
and better identify the appropria regula-
tory spheres of the respective c tries in
which these corporations are base nd oper-
The initiatives presented in thi Benda are
made in the tradition of bipart n foreign
policy which my nation has hist tally ob-
served and to which I personall subscribe.
Throughout, all aspects of our ooperative
endeavor, we need to maintain ontinuing
dialogue with oil-producing nati and less-
developed countries on the criti 1 issues of
fuel, finance, and food. The goal f this dia-
logue should be a new set of a angements
which merit mutual support. I efforts to
accommodate conflicting views, owever, we
will not submit to the dictates any group
of nations which threaten the security of
Individual countries, or undermine the sta-
bility of the international financial system
and the world economy.
The gil-producing nations cannot achieve
their own varied objectives without the co-
operation and assistance of the major con-
suming nations. This gives us both leverage
and opportunity to influence the policies and
conduct of the oil producers if we choose to
do so-and if we act together.
The agenda I have proposed-our common
agenda-offers us the opportunity to promote
the economic well-being of all peoples. Let
us not succumb to the paralysis of pessimism.
Let us use our combined assets and ingenuity
to shape a future in which all nations may
flourish.
In conclusion, let me add these words;
There is, above all, one abiding faith that
joins our two peoples. It is the commitment
to Individual liberty that time and time
again has brought us together in the cause
of human rights.
Freedom imposes great obligations on those
fortunate enough to have it.
If we care only for ourselves, what are we?
If we do not speak for freedom, who will?
And if not now, when?
If new relations between East and West
are to mature into long-term peaceful co-
operation, there must be progress toward
the freer movement of people and ideas
across international borders. In Geneva, at
the European Security Conference, your gov-
ernment and mine must join together, along
with the free nations of Europe, to press for
lowering the artificial barriers that now di-
vide East and West. In this enterprise we,
together, are privileged to represent what is
most noble in our traditions.
Having begun with your Winston Church-
ill, I shall close with our Harry Truman. I
believe that both men would have approved.
On November 11, 1949, twenty-five years ago
today, President Truman had this to say:
"The task of achieving greater justice and
freedom will be long and it will be difficult.
In various parts of the world today, human
rights and freedom are being deliberately
violated and suppressed. These things are not
only morally wrong-they threaten to undo
the slow and hard-won achievements of civil-
ization. There can be no higher challenge
than to build a world of freedom and justice,
all our strength."
In 1945 a truck driver named Bevin en-
trusted the security of Europe to a haber-
dasher named Truman with the words, "Over
to you." Now, nearly thirty years later, the
watchword among Pilgrims must be: over to
all of us,
FAMILY EDUCATIONAL RIGHTS AND
PRIVACY ACT OF 1974
Mr. CURTIS. Mr. President, on behalf
of the distinguished junior Senator from
New York (Mr. BUCKLEY) I ask unani-
mous consent that a number of articles
and. press releases relating to the Family
Educational Rights and Privacy Act of
1974, of which I was a cosponsor, be
printed in the RECORD.
There being no objection, the material
was ordered to be printed in the RECORD,
as follows:
FAMILY EDUCATIONAL RIGHTS AND PRIVACY
ACT OF 1974
Caspar Weinberger, Secretary of Health,
Education, and Welfare, announced today
that Thomas S. McFee, Deputy Assistant
Secretary for Management Planning and
Technology, will assume responsibility for
the office mandated by the Family Educa-
tional Rights and Privacy Act of 1974.
This office will serve as the focal point for
investigating, processing, and reviewing viola-
tions of the Act. It also will handle in-
quiries from individuals seeking information
related to the protection of the rights and
privacy of parents and students,
.The office will be ready to function on
November 19, 1974, the effective date of the
law. Information requests should be ad-
dressed to Mr. McFee, c/o Room 5660, HEW
North, 330 Independence Avenue, SW., Wash-
ington, D.C. 20201.
The Secretary also reiterated the Depart-
ment's firm support for the Family Educa-
tional Rights and Privacy Act he stressed
the President's endorsement of this approach
to ensure the rights of individual students
and parents and noted that it is consistent
with the continuing efforts of the Domestic
Council Committee on the Right of Privacy
on which he serves.
The Secretary said the Department will
publish its notice of proposed rule making
to protect the rights of privacy of students
and their families in connection with
Department-assisted surveys and data
gathering activities on the date agreed upon
with Congress.
He also directed immediate development
of regulations on those other sections of the
law relating to access to official school rec-
ords, hearings to challenge their content,
and the release of personally identifiable data
without student or parental consent. This
second set of regulations will be published
as a notice of proposed rule making as soon
as possible, and in any event, no later than
the end of this year. It is hoped that such
regulations will provide members of the edu-
cation community with the guidance neces-
sary for them to establish their own proce-
dures to ensure compliance with the law.
In addition, the Secretary directed the De-
partment to work closely with Senator James
L. Buckley (author of this Act), members of
the Senate and House education committees,
and representatives of public interest groups
to develop any needed clarifying amend-
ments. If the legislation is modified, the De-
partment would, of course, revise its regula-
tions.
CUMULATIVE RECORDS: ASSAULT ON PRIVACY
(By Diane Divoky)
It all started innocently enough back in
the 1820s, when schools in New England be-
gan keeping registers of enrollment and at-
tendance. In the 150-odd years since, the
student record has grown to grotesque pro-
portions.
Like Frankenstein's monster, it
now has the potential to destroy those it was
created to protect.
Educators have constructed this monster
in the name of efficiency and progress, add-
ing a piece here and there, tinkering with
new components, assuming all the while they
were creating a manageable servant for school
personnel. But what they failed to foresee
was the swift development of modern com-
munications technology and the widening
employment of that technology by a social
system increasingly bent on snooping.
The growth of the record into an all-in-
clusive dossier came in response to the in-
creasing centralization and bureaucratiza-
tion of schools. Another contributing factor
was the emergence of education's ambitious
goal of dealing with the "whole child." Out
of that context grew such specific actions as
the NEA's 1925 recommendation that health,
guidance and psychological records be main-
tained for each pupil, and the American
Council on Education's 1941 development of
record forms that gave more attention to be-
havior descriptions and evaluation and less
to hard data such as subjects and grades. By
1964, the U.S. Office of Education was listing
eight major classifications of information to
be collected and placed in the student record.
More recently, the Ohio Department of
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C NGRESSIONAL RECORD -SENATE November 19, r.?
Education took a hard look at state laws going son could discover in the boy's anec- usually are maintained makes difficult any
requiring the keeping of such records and dotal record comments that he was "strangel;, systematic assessments of the accuracy of in-
sounded a note of warning: "When corn- introspective" in the third grade, "unnatu- formation contained therein. Formal proce-
strued with other statutes which give school rally interested In girls" in the fifth, and had dures permitting parental or pupil chal-
authorities wide discretionary power . . it developed "peculiar political ideas" by the lenges of allegedly erroneous information do
[is] obvious that schools may collect any time he was 12-judgments that the father not exist. An unverified allegation of mis-
kind of information they desire concerning could neither retroactively challenge nor ex- conduct may therefore . become part of
pupils." Power of that magnitude, admon- plain.
ishecl guidelines for Ohio administrators, a pPp'e permanent record.
Case histories such as these helped moll- Pro locedures governing the periodic de-
must be handled with great care and discre- vats sociologists David A. Goslin and Nancy struction of outdated or no longer useful in-
tion. Bordier of the Russell Sage Foundation to formation do not exist in most systems.
The ultimate mushrooming of records may undertake a survey of the record-keeping "Within many school systems, few provi-
have been reached in the massive New York practices of 54 representative school districts. sions are made to protect school records from
City school system-largest in the nation. They found that the systems maintained as examination by unauthorized school person-
There, the records required or recommended part of their permanent files widely varied net.
for each child involve, if nothing else, a stag- information on students. Almost all kept "Access to pupil records by non-school per-
gering amount of book work. A typical, rain- informal teacher-made ancedotal records, sonnel and representatives of outside agen-
bow-:rued student dossier in New York special health data, notes on interviews with cies, is for the most part, handled on an ad
carries: parents and students, correspondence from . Formal
A bust-colored, cumulative, four-page rec- home, records of referrals, delinquency re- hoc bnfor ement policies officials, h cour access by
ord card that notes personal and social be- ports taw-demob ors, colleges, the earc a poten and
havior, along with scholastic achievement, and other "high security" data. Nearly tial employers, colleges, _ researchers and
three fourths of them also kept personality others do not exist in most school systems.
and is kept on file for 50 years; ratings, samples of student work, dairies and
A blue or green test-data card on which autobiograph_es. One third recorded the race le "Sensitthe and intimateinformation col-course all standardized test results and grade equi- and religion of students, almost a half re- lor- u the contacts of is not ppupcl protected coum
valen';s are kept, also for 50 years; sep contacts rotected from
corded students by nationality, and half kept subpoena b by formal authority pthority in most states."
A white, four-page, chronological reading photographs on the record forms. The re-
recorct; search team also discovered from the school ales i The record-keeping toi concluded that "these cons itute policies A pupil's office card; psychologist to a front-office clerk might be serious threat n Individual privacy in An emergency home-contact card; responsible for feeding information into the a serious States." to Individual vcy in the,
A salmon-colored health record-one side permanent file. (One interesting sidelight: United keeping based " It on these principles: for
for teachers, the other for the school, nurse The records were consistently little used by record keeping l these principles: about
and d ctor; teachers and school staff, a finding that flew students information should fo collected nt oA dental-check card' in the face of the official rationale that the students without the informed consent of
An f,udiometer screening-test report; dossiers were needed to guide teachers in parents and, in some cases, the child. (2) In-
An articulation card, including teachers' their relations with individual students.) the the bases atste should minimum be of flan data aed a rs o only
recommendations for tracking in junior high Goslin and Bordier also found that CIA appears on the
school;
school; and FBI agents had access to the entire Stu- permanent record card, while the rest is pe-
A
teacher's' anecdotal file on student be- dent files in more than half the school sys- riodidally reviewed and, if appropriate, de-
tems, as did juvenile courts and health-de- stroyed. (3) Schools should establish proce-
An office guidance record, comprised of partment officials. Local police had access to dures to verify the accuracy of all data main-
counselors' evaluations of aptitude, behavior complete files in almost one third of the sys- shined have their pupil rtoothe (c Parents-
and rec-
and personality characteristics; tems. But parents-those citizens with pri- should avd full access to their child's retie
A Bureau of Child Guidance file that is Mary legal and moral responsibility for the ords, including the right to challenge the
regarded, though not always treated, as con- child-had, access to the entire files in fewer accuracy of the information found therein.
fidential, and includes reports to and from than 10 percent of the systems. Some super- (5) No agency or persons other than school
psychologists, psychiatrists, social workers, intendents reported that parents were personnel who deal directly with the child
various public and private agencies, the denied access to their children's records even concerned should have access to pupil data
courts and the police; when they possessed the legal right to In- without parental or pupil permission (except
And all disciplinary referral cards. spect them. "What is particularly signifi- in the case of subpoena).
In New York and elsewhere, as the records cant," the researchers noted, "is the impres- In 1972, the Sage Foundation tackled the
began to contain more detailed and varied sion that school officials have strong reser- subject once more and found that, in spite
information, they took on lives of their own; vations about giving parents very much in- of the distribution of 100,000 copies of its
they became, somehow, more trustworthy formation (other than routine grade reports guidelines, "the vast majority of schools In
and permanent than the quixotic people and sometimes achievement-test scores) this country still do not have records pol-
they represented. Read the cumulative folder about the content of evaluations that are idles which adequately protect the privacy of
of a student-131 IQ, strong language skills, continually being made of their children." students and their parents."
musical talent, loss of vision in one eye, As a follow-up to the Goslin-Bordier study, The researchers also noted that a good
permissive home-and then meet the child. the Russell Sage Foundation convened in policy may not begin to solve record prob-
If he doesn't come on bright, articulate, 1969 a group of prominent educators, lawyers lems. In one school system visited by a re-
humming a little and self-assured in spite and social scientists to consider the ethical searcher, a written policy was drawn up by a
of a squint, something, one feels, must be and legal aspects of school record keeping committee composed entirely of counselors.
wrong. And it's not likely the record will be and to develop guidelines for the collection, As a result, "the social worker thought it
blamed, maintenance and dissemination of these rec- did not apply to her records, the mechanics
As the process of information collection in ords. The conference report began: "There teacher who had considerable informal con-
the schools snowballed-a few more forms for are clear indications ... that current prat= tact with local employers thought that it
the guidance department, a few more facts tires of schools and school personnel relating only applied to formal requests for informa-
for state agencies, another set of teacher to the collection, maintenance, use and dis- tion handled by the registrar, and one of
comments for a new tracking plan-almost semination of information about pupils the principals regarded it as of the utmost
no one stopped to weigh the implications of threaten a desirable balance between the in- importance to stay on good terms with local
recording; so much hard and soft data about dividual's right to privacy and the school's employers by telling them in detail of all the
children and their families. There was little stated need to know." It pointed to these behavior problems potential employees had
thought given to development of clean abuses: experienced while in school."
policies and practices by which student and "Information about both pupils and their The Sae re orts and
parental rights of privacy might be balanced parents is often collected by schools without
fuel g p guidelines helped
against the needs of the school and other the informed consent of either children or to a growing national alarm about threats
social agencies to know, or to guarantee, that their privacy posed by our technological
and
parents. Where consent is obtained for bureaucratic society, and several ral educational
material contained in'records was accurate the collection of information for one pur- groups subsequently took public positions
and pertinent. pose, the same information is often used insisting on the confidentiality of records. In
Thus, by 1970, almost any government subsequently for other purposes. 1971, the NEA, which 46 years before had
agent could walk into a school, flash a badge "Pupils and parents typically have little urged more comprehensive record keeping,
and send a clerk scurrying to produce a file or, at best, incomplete knowledge of what approved the code of Student Rights and
containing the psychiatric and medical rec- Information about them is contained in Responsibilities, which asserts that the "in-
ords of a former student. It was unlikely school records and what use is made of this terest of the student must siypersede all other
that the student would even know about the information by the school. purposes to which records might be put,"
intrusion into his private life. A mother "Parental and pupil'access to school rec- and urges strict policies to protect the rights
could be coolly informed that she had no ords typically is limited by schools to the to privacy of students and parents. It sug-
right to see the records that resulted In her pupil's attendance and achievement record gested that junior high school students have
being transferred to a class for the mentally (including standardized achievement-test joint control with their parents over their
retarded. A father attending a routine scores). own records, and high school students, total
parent-teacher conference about his out- "The secrecy with which school records control.
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`3'o' rnber 19, 1974 CONGRESSIONAL RECORD - SENATE
S 19609
Recently, a few local school boards, nota- officials frequently refuse access or fail to City school system respond? In May 1962,
bly those in Des Moines, Iowa, and Jefferson inform them of the privilege. the board of education sent a special circu-
City, Missouri, have adopted regulations to California's state education code also for- lar to all schools stating that most data in
safeguard records. Des Moines allows parents bids school employees from giving out per- records-guidance notes, medical and pay-
and students to see the records, asks written sonal information about pupils to anyone ex- chological reports, social agency reports-"are
consent of them before any information is cept specified officials. That didn't stop one not part of the official school record and are,
released to anyone else, and gives them the district administration, acting in advance of therefore, not to be made available for par-
power to determine which records may never a school -board hearing into the suspension ents to inspect." The system restated that
be released to anyone. of a student, from publicly announcing that policy in 1964 and 1969, insisting it was "in
On the state level, Oregon has given parents the boy had been guilty of "serious violation conformity with State regulations."
the right to inspect the total record, Dela- of manners, morals and discipline." Three In 1970, the New York City system, dis-
ware grants students 14 years or older control years later, the courts found that the public turbed by the publicity surrounding the Rus-
over the release of information from their statement was based on nothing more than sell Sage guidelines and fearful of lawsuits,
own records, and New Mexico guarantees any allegations of the school superintendent, and took a small step forward for privacy. It ap-
public school student the right to inspect the student was awarded damages. pointed an impressive committee of school
his own record. Both New Mexico and Oregon So while scattered improvements in the department and civic representatives to re-
have moved to keep records confidential from ? national picture have indeed occurred, school view and help shape its policies.
outsiders. Oregon law prohibits the release of records continue to provide an easy route An incident during the policy revision
records to anyone other than the parents and for invasion of privacy. Perhaps the worst process said a good deal about the power of
child. The New Mexico board of education abuses of school record keeping in America bureaucrats to ignore or override policy. The
policy statement says that "government in- occur, despite well-established guidelines to committee, hearing that school employees
vestigative agencies as such have no inherent the contrary, in the country's biggest and were regularly providing sensitive informa-
legal right to have access to student files and reputedly most liberal city, New York. tion about students to outside agencies,
records," and the board bars them from ac- During the months that the author served urged the chancellor to order an end to the
cess without the student's permission or a on the New York City board of education's practice until a new policy was settled on.
court order. New Hampshire prohibits schools committee to revise student records (as He did so. Fifteen days later, under pressure
from keeping records that "reflect the politi- chairman of the subcommittee on safeguard- from school administrators, he rescinded the
cal activities or beliefs of students." ing and dissemination), these incidents oc- order. During that short period of time, -28
Some educators and parents, discouraged curred: separate and distinct categories of outsiders
with waiting for legislators or school admin- A secretary at a private tutoring agency had called the board of education to com-
istrators to act, have sought to take the reins calls a public junior high school to inquire plain that their usual sources of information
in their own hands. In San Francisco, a about a child's reading level. The principal about students had been cut off. They in-
group of black teachers and counselors are opens the child's record and gratuitously In- cluded FBI agents, military intelligence offi-
working for the elimination of all records forms the unseen caller that the child has a cers, welfare workers, policemen, probation
except for a small card of hard data. They history of bedwetting, his mother is an alto- officers, Selective Service board representa-
argue that the image of a folder as some holic, and a different man sleeps at the home tives, district attorneys, health department
capacious pocket into which all sorts of al- every night. When the disclosures are re- workers and civil service commission officers.
leged wrongdoings and bad marks can be ported to the board of education, the prin- Inside education's own house, the most
dropped has a bad psychological effect on cipal denies the incident and his immediate vocal opponents to giving parents access to
students, that the folders consistently con- superiors back him up. student records are those who write and
tain indefensible and gratuitous negative A teacher of a child entering a new school maintain the most sensitive and Inferential
comments but little about the student's real gets this summary of the student's past records; the guidance counselors. In 1961,
educational ability, and that these biased academic year: "A real-sickle-absent, tru- the American Personnel and Guidance Asso-
comments are used authoritatively by the ant, stubborn and very dull. Is verbal only ciation issued a policy statement on the use
schools, particularly by guidance counselors, about outside, irrelevant facts. Can barely of records that asserted that counselors have
who see a folder as a kind of bible. "Black read (which was huge accomplishment to get the right to decide which records parents
students' folders tend to be at least half an this far). Have fun." should see and how those records should be
inch thicker than those of white children," A black father who works for the school interpreted to parents. The counselors gener-
one of the committee members said, "which system has a friendly teacher show him his ally argue this way: What if the child reveals
tells you something about the child even bright daughter's "confidential" record. In it a conflict with his parents that would only
before you open the folder." is a five-page critique of how his own com- be aggravated if the parents knew what the
The manner in which the -thick folders of rnunity activities as a "black militant" are child had- said? What if a child tells of a y or
a group of junior high school students in causing his daughter to be "too challenging" n illegal ationttha Important may be d famator for
Washington, D.C., were handled is now the in class. eve
basis of Doe v. MacMillan, a case before the Yet New York State has the clearest reg- the future counseling of- the student? What
U.S. Supreme Court. The suit was triggered ulations in the nation concerning student if parents misinterpret the professional no-
when the House Committee for the District records, thanks to a series of administrative tations of counselors? What if the child needs
of Columbia, in preparation for its annual and legal decisions dating back to 1960. In someone outside his home to confide in?
hearings on the D.C. schools, sent investiga- that year, the Levittown board of education The other side of that argument is that if
tors out to gather up the cumulative records directed that parents be permitted access to information is so delicate or painful that
of students. Copies of actual test papers, dis- all the school records of their children, in- parents shouldn't see it, it probably shouldn't
ciplinary reports and evaluations-defama- eluding evaluations, guidance notes and see it, it probably shouldn't be in a school
tory if not libelous materials-were repro- medical, psychiatric and psychological re- folder at all. Counselors answer that student
duced with the stdents' names, still on them. ports. A dissenting board member appealed' evaluations will be badly watered down If
The report was then published by the com- the decision to the New York State commis- those writing - them know parents will see
mittee's chairman, entered in the Congres- sioner of - education. The result was a land- them-a statement that raises provocative
sional Record and circulated about the mark ruling, Matter of Thibadeau, which questions about the school's views of the
country. Parents sued the individual con- specified that as a matter of law, parents parents of their students, and its honesty in
gressman as well as the school board, prin- have access to all their children's school dealing with them.
cipal and teachers. Sovereign immunity pro- records. Dealing with this issue, the Buffalo LaW
tections In the District of Columbia com- Yet in the following year, the administra- Review pointed out in 1970 that when a
plicated the case, but the U.S. Supreme Court tion in a neighboring New York school dis- school evaluates a child, it is acting in loco
recently ruled that the congressmen had no trict refused to allow either the father or parentis, because evaluation is a parental
special Immunity "from local laws protect- the private physician treating the former's function that has been extended to the
ing the good name or the reputation of the son to see the boy's records. The father went school. But "once the school authority in-
ordinary citizen" and remanded the case to to court, and the decision, Van Allen v. Mc- lists on keeping its evaluation of a child
the Court of Appeals for further action. Not Cleary, stated: "It needs no further citation secret, then it intrudes into the domain of
coincidentally, the D.C. board of education of authority to recognize the obvious 'inter- parental prerogative and oversteps its legiti-
established regulations for protection of rec. est' which a parent has in the school records mate in loco parentis authority, for it is
ords just as the complaint was filed. of his child." The court added that the par- obvious that a parent can control publica-
But even the best-intentioned policies ent's right to see the records stems from tion of his evaluation of his own child and
don't guarantee ethical practices. A fair rec- "his relationship with the school authorities can keep secret from the world at large such
ord policy in a suburban school district near as a parent who under compulsory education evaluation." -
Cleveland fell into disrepute when it was has delegated to them the educational au- There are, of course, circumstances in
learned that students were regularly given thority over his child." Since both the Thi- which the best interests of a child and in-
the job of transporting records from one badeau and Van Allen rulings affected all spection of his records by his parents may
building to another and were- just as regu- New York State school systems, they became conflict. However, definition of those circum-
larly snooping on each other. the basis for the detailed Manual on Pupil stances is made difficult by an unresolved
A California law passed In 1959 assures Records distributed to all school personnel. ambivalence about whom counselors and
parents of the right to inspect their chil- Handed that clear mandate to allow par- school psychologists serve. If the counselor's
dren's cumulative records, but local school ents access, to records, how did the New York client is the student, then the counselor
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CONGRESSIONAL RECORD - SENATE November 19, L q74
shoul3 guard the pupil's records and inter- about the possible adverse effects of com- [From the Harvard Law Record, Nov. 8, 1974]
ests Zealously against all other parties, in- puterizing personal records. An HEW task
cluding other school employees. But if his force on data banks, conerened at first pri- BACKBEhTCHEA NS C FAVORS SECRECY,
client is the school system that pays him, manly with the recent push to require social GAIS2 CANDOR
and his job is trying to help adjust that stu- Security numbers of all children entering (By Ira Nerken)
dent to the existing educational environ- schools, has broadened its Inquiry to include Faced with the release of the Pentagon
anent, then the counselor or psychologist a wide range of other record problems. An- Papers, Dean Rusk threatened an end to the
might feel free to share personal information oj:her HEW group has been studying how placement of important information (vital
about the student with other educators and records contribute to the systematic classify- to an informed public) on paper. Faced with
government agencies but not with parents, ing and inappropriate labeling of school- demands for the White House tapes, Richard
who become a sort of third party. Counselors children. Nixon threatened an end to "candor and
who are used by school systems primarily to What is often described as California's frankness" (constituting an abuse of trust)
discipline truants and misbehavers unavoid- "pioneering" work in social control suggests in the oval office. Faced with Senator Buck-
ably feet that the institution, not the child, ways in which schools inadvertently may ley's bill giving students access to their own
is the client. Administrators all too often feed information about their students into educational records, Harvard has threatened
evaluate counselors not on the well-being of Big Brother computers. With funds from both an end to placement of Information
the cl.ild but on the thickness and currency Title I of the Omnibus Crirne Control and vital to Students in their records, and an
of his record folder. Safe Streets Act of 1968, the California Coun- end to frankness and candor in their files.
Perhaps the biggest problem faced by all cil on Criminal Justice has set forth on the With the emergence of the issue of student
concerned is the fact that we live today In a mission of making "Californians safe from access to files that most vitally affect them,
world of technologically recorded, main- crime." CCCJ funds a statewide program the arrogance of power in academia-at Har-
tained and communicated information. In called "Corre,:tionetics." If computerizers vard particularly, but also at other institu-
1968, the Phoenix, Arizona, Union High and centralize.; all juvenile records, including tions of higher learning-has been,set out
Schoo.. System introduced a cumulative information on psychiatric treatment. Under in bold relief.
record system that enabled any staff member state law, children down to the age of six Yet to listen to the University's Counsel,
to pica up any phone In his school, push a years who have been identified as being "in Daniel Steiner, one would think the issue
button, dial a code number, dictate com- danger of becoming delinquent" can be de- is neither Harvard's resentment of any con-
ments about a student into a remote recorder clared "pre-delinquent" and thus become a straints on its autocratic exercise of power,
and play back comments made by other staff California Youth Authority statistic with a nor even real problems with the substance
members. The comments, recorded on mag- juvenile record. of the Buckley amendment. Buckley's bill
netic tape or a plastic disc in a central As if that weren't enough, CCCJ is looking is "terribly drafted," and "extremely am-
records room, are then transcribed by a for other potential problems that might be biguous," claims Steiner, and the "heart of
typist onto pressure-sensitive labels that computerized. One program, funded for two the University's objection," is "the lack of
are entered in the student's permanent file. years, instructed kindergarten teachers in opportunity to be heard." For this Steiner
A clerk sorts the transcriptions, and they sophisticated methods of identifying "target merits a special citation for disingenuous-
are delivered to the appropriate guidance students"-those five-year-olds whose social ness. For while these issues may have some
counselor for inclusion on the cumulative and academic profiles were similar to those validity, they have little to do with Harvard's
record. Color coding identifies the kind of of adolescents who ended up in juvenile real objective, which is to kill the Buckley
information contained on each gummed courts. bill.
label-health, attendance, discipline or fi- Suddenly, an unwary kindergarten teacher Last summer State Representative Lois
nancial. Efficient, unquestionably. But what has become in effect a government intelli. Pines introduced a bill in the Massachusetts
happens if a teacher calls in a comment at gence agent. legislature similar in substance to the Buck-
the end of a bad day and two weeks later ley amendment. Pines had drafted her bill
regrets it, but the information has already NSA PRESIDENT STRONGLY SUPPORTS well. It was not ambiguous. Steiner was
made its way to the storage system? What if BUCKLEY AMENDMENT given not only the opportunity to be heard,
the typist misunderstands the dictation? ? National Student Association President but to suggest alternative proposals. In that
What ;.f the staffer dials a wrong number? Kathy Kelly spoke out strongly today in en- situation he argued that "unless the legisla-
The potential for abuse is staggering, dorsement of the Family Educational Rights ture knows of specific violations, legislation
The state of Florida already has a cen- and Privacy Act of 1974 sponsored by Sen. shouldn't be enacted." As to drafting pro-
tralizeci record-keeping computer system, James Buckley (Conservative, New York). posals, he doubted anything could be drafted
which employs an IBM 1230 Optical Scanner President Kelly, former student body presi- that "would serve her [Pines'] purposes and
to enter data for all pupils from the ninth dent at the University of Minnesota at Min- ours."
grade on up into a computer. These items neapolis, took exception of certain technical "Harvard administrators," according to the
appear: Social Security number, grade, problems with the language of the bill which Crimson, "have said repeatedly since the
school, address, type of curriculum, date and should be clarified with additional amend- [Buckley amendment] passed Congress that
place of birth, citizenship, health and physi- ments to be introduced when Congress recon- it will hurt students because they will no
cal disabilities, sex, race, religion, marital venes. longer be able to get straightforward and
status, family background, languages spoken But she noted that the bill provides a long honest letters of recommendation. (Thus we
at home, academic record, test record, overdue mechanism for correcting misinfor- learn the new Harvard motto: "Veritas-but
honors-.work record and extracurricular ac- mation and errors in students' records which not to your face.") This is not only a sordid,
tivities. Iowa and Hawaii are installing may be vital to their careers and President but also a hoary argument, and one well
similar systems. Kelly hopes that efforts on the part of some answered by President Prestice of Wheaton
Just last April the New York State Educa- educational organizations to delay imple- College, responding to a similar argument:
tion Department asked 85 school districts to mentation of the bill will be defeated in light "How can an evaluation be considered 'hon-
supply the names and addresses of all stu- of the pressing need for the legislation. est and candid' if it is to be kept from the
dents who have received psychological or President Kelly said that the National person evaluated? I agree that my criticism
social' work. services; have a history of tru- Student Association, the oldest and largest of my students should be a matter between
ancy, delinquency, drug abuse or alcoholism, organization of student governments in the him and me and people who have a respon-
or a "potentially disabling emotional, country, has long been an advocate of the sible right to any views. They should not be
physicaa or mental handicap"; or have at- legal rights of students, and the Association available to the general public, but they
tended classes for unwed mothers, for the feels strongly that this bill will curb the must be available to the candidate himself
"Socially maladjusted," or in drug-abuse pre- arbitrary power that has so often been mis- if I am to be considered 'honest and can-
vention, in no case were parents asked for used by school administrators and agencies did."'
permission to release the information. allowed easy access to students' records. Such Admittedly, the protection Harvard here-
Many systems complied, in one that access, denied parents or the students them- tofore afforded the hatchet job is gone-
didn't. Commack, New York, the director of selves, has negatively affected students' ca- unless the hatcheteer wants to phone the
pupil personnel services said his district reers both in school and long after their ten- University. But it took a Harvard senior
would not send the names along "until I re- ure in the academic community, tutor to point out what Harvard administra-
ceive a statement ...that they will not be The bill would provide parents or students tors and faculty chose to ignore: "those
put in a computer ..." The Nassau (County) access to records and an opportunity to chal- and tsen wdon ho owr to algl say theyte ww will
owing Psychological Association took a strong lenge inaccurate or misleading information and then nothing, as a should letter will
stand against the information release, telling therein. Permission of the parents or stu- all alon nothing, as they should have done
along."
all schools: "Releasing this information dents must be obtained before records can all As to
without securing authorization from the be released to persons or agencies outside of man u fa the ctoredother hobgoblins Harvard has
parent or guardian is inimical to the profes- the school. Also, parents and students must . The Buckley amendment
sional behavior of the psychologist." be notified of their rights to inspect records. would allow students to violate the st ati-
Even the federal government, not the The Association hails this bill as a long dentiality parents ther parents' e con ned about at his.
greatest defender of privacy rights in recent overdue injustice redressed, and commends - and can't get are concerned about ohis
times, I. begun to show some concern Senator Buckley for drafting it. daughters not to p from their sons/
peek, ek, that is their prob-
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N'0`ro ember 19, 1974 CONGRESSIONAL RECORD -SENATE
lem-not Harvard's. Students could see psy-
chiatric reports. Why in blazes are psychiat-
ric reports lying around in files anyway?
And if they must be there, why shouldn't the
students look? Harvard can no longer pro-
tect students from being forced to supply
potential employers with materials from
their files. Maybe we need a law to protect
Harvard students from overbearing em-
ployers.
Professor Alan Heimert, of the Harvard
English Department, denounced the Buck-
ley bill as "representing the traducing of an
entire profession. This law says that aca-
demics don't have any ethics, that academics
don't even have any common sense, and that
any negative recommendation is written in
bronze." Perhaps Heimert should compare
his words to those of the policemen who
claim procedural restraints on their powers to
search, etc. are a "traducement of the entire
profession." Perhaps he should wonder why
courts are allowing defendants to see their
presentence reports, without worrying that
this implies the judicial system has no
ethics or common sense.
Finally, a word of advice to Harvard. Dean
Rosovsky (FAS) has talked of "having no
choice but to honor the law." But the Sec-
retary of the FAS Council said that while the
faculty's "initial posture" would be "full
compliance" with the law, "non-compliance
isn't out, but it isn't In." James Q. Wilson
said "no one is talking about noncompliance
at this stage," Such talk may get Gerald Ford
to issue a statement deploring non-compli-
ance, but saying Congress was wrong. But it
will be hard to kick Southie around anymore.
QUESTIONS ABOUT AND OBJECTIONS TO THE
BVCKLEY AMENDMENT-THE FAMILY ED-
UCATIONAL RIGHTS AND PRIVACY ACT OF
1974 (SEC. 513 of P.L. 93-380) -AND
RESPONSES
Numerous higher education groups are
voicing complaints about and objections to
the Buckley amendment. Our office receives
calls and letters about it every day. It is
natural that they should complain; they are
being required to change long established
practices and (bad) habits, and change is
often painful, or, at least, uncomfortable.
Most of their objections are not substantive,
however, or can be resolved by reasonable
regulations. But there Is one largely rea-
sonable concern, which will be addressed
later.
While there is an effort underway to lobby
for delay in the implementation of the
amendment, most schools and agencies seem
to be able and are in fact preparing to com-
ply with implementation on November 20,
1974. We have received calls from schools,
school districts, school boards, colleges, and
universities from all across the country;
nearly all the callers have said that their
schools are developing a policy and proce-
dures for compliance, but that they have a
question or two as to what a particular as-
pect of the bill means or includes, or whether
such and such procedure on their part would
be appropriate. In fact, we have even re-
ceived regulations prepared by local school
districts, which are rfoW in force, to imple-
mentthelaw, .
As further evidence that schools across the
country are willing and able to comply, let
me offer a quotation from the "Education
Daily" of September 27, 1974:
"In advisories to their members to explain
what will be expected of them under the
new privacy requirements of the Education
Amendments of 1974 (P.L. 93-380-Ed
Aug. 16), both the National Association of
elementary School Principals and the Amer-
ican Association of School Administrators
are suggesting that schools review their pol-
icies on record-keeping and develop stand.
ards as to what should be in cumulative stu-
dent folders in the first place.
"It would be a good idea, says Dr. Paul
Salmon, Executive Director of AASA, for
schools to remove from the folders and de-
stroy such things as unsubstantiated teacher
opinions or language which tends to "cate-
gorize" students. While many schools al-
ready have rules requiring student records
to contain only responsible and documented
information, Salmon points out, others have
tended to "drop everything that came along"
into the cumulative folder, For such schools,
Salmon and NAESP's William Pharis say,
the best advice is to get their records into
order before the law goes into effect Novem-
ber 20."
It is also worth noting that more than 20
states already have state laws or regulations
on the books essentially similar to the Buck-
ley amendment. In Virginia, for example,
even grade schoolers are now permitted ac-
cess to their school records!
All this is not to suggest that there are no
problems and uncertainties involved in the
implementation of the Buckley amendment.
But it must be realized that such problems
and questions arise before, during, and after
the implementation of nearly every law. That
is one of the reasons we have courts, where
considerations of the Intent of legislation,
the test of reasonableness and of equity
usually combine to produce proper and ap-
propriate applications of the law. We also
have administrative procedures, particularly
in this case, for clarifying and adjudicating
issues which may arise.
However, most, if not all, of the questions
that are being raised about the amendment,
can be resolved without need of recourse of
the courts. The law is still new and it has
not been fully explicated. Regulations to be
issued by HEW should clear up many of
these questions. The meeting held in early
October between members of the staff of the
Congressional Education committees and rep-
resentatives of HEW to discuss regulations
regarding the implementation of the Buckley
amendment helped clear up some of the ap-
parent problems. The meeting that OE re-
cently had with interested educational
parties highlighted various problems. Now
the HEW Task Forces are proceeding to draft
appropriate regulations. Secretary Wein-
berger has announced that regulations will
be published before the end of the year. With
reasonableness and cooperation on all sides,
much can be acceptably resolved without
need of further legislation.
QUESTIONS AND OBJECTIONS
la. Prior Confidentiality-what about the
amendments applicability to already exist-
ing letters, statements, and evaluations
which were written with the understanding
that they would remain confidential-i.e.,
not for the eyes of the student in question?
Would not access to these items involve a
violation of the rights of privacy of their
authors.
. lb. Confidential recommendations on the
part of teachers, counselors, etc, are impor-
tant aides to evaluating students, especially
for college and graduate school admissions
offices. If these statements were to be avail-
able to the students in question, their au-
thors would be very unlikely to be candid
and frank in their assessments of a student's
strengths and especially his weaknesses. This
would make the selection process much dif-
ficult and tend to penalize the talented stu-
dent who is not a good test-taker. .
1. Response-These objections are the most
significant and substantive of those that
have been raised While it was not the intent
of the Buckley amendment to override prior,
acknowledged confidentiality, nor to pre-
clude any confidential assessments and rec-
ommendations in the future, the language
of the amendment seems to eliminate such
confidentiality.
In the great majority of cases, these con-
fidential statements are at the request of the
student himself with the understanding that
S 19611
he would not have access to them, although
many teachers do provide copies of such
statements to their students. Such an un-
derstanding on the part of the student and
the teacher, while often implied, is nonethe-
less an agreement which in effect gives the
confidentiality of these statements special
standing.
On the other hand, there are some evalua-
tions and comments of which the student
is totally unaware, sometimes written by
individuals with an inadequate knowledge
of the student or with a personal bias
against him. Such evaluations sometimes
find their way into a student's official file,
where they may do inestimable damage to
his future. In other situations official Com-
mittees prepare and send evaluations of a
student to other schools to which the stu-
dent is applying. The student generally has
no idea of the content of the evaluations and
no opportunity to submit his own statement.
Cases sometimes arise, therefore, where a
student is "judged" and found "guilty" or
wanting by a school or an employer without
any opportunity to know who his "accusors"'
are or what has been said against him.
One fact that should be realized if we are
to keep these matters in current perspective,
is that a number of parents and students
have already fought successfully in court to
have school records, including confidential
evaluations relating to college admissions,
opened to them for good cause. The rippling
effect of these court decisions may eventu-
ally make much of this discussions academic.
One way to deal with the confidentality
question might be found by having the
teachers and schools seek a written waiver
of access from students in connection with
certain recommendations and evaluations
(as is already being done in some places).
On the other hand, students should seek a
guarantee of access to such recommenda-
tions and evaluations whenever they can
(this is also already being done in some
places).
Because the Buckley amendment is silent
on this subject, the seemingly all inclusive
nature of its language would seem to over-
ride privileged confidentiality. Realizing that
the rights of teachers and counselors and the
evaluation requirements of colleges need to
be considered as ell, we would hope that
equitable provisfohs for this situation could
be worked out by regulations. Failing that,
instead of seeking to delay the implementa-
tion of the law, we would suggest that it be
amended in the following general manner:
Provided, however; that such personally
signed statements or letters to which the
student (or his parents) has previously
waived in writing his right of access, or
which are .dated prior to and are generally
acknowledged to have been written in confi-
dence, shall not be available to the student
or his parents, except upon permission of
the author or the order of a court of compe-
tent jurisdiction.
Such an addition would perhaps deal ade-
quately with the prior confidentiality ques-
tion. It would also permit a waiver of access
by the students, so that colleges and uni-
versities would be able to receive more "can-
did" evaluations, instead of the bland, use-
less ones which they fear the Buckley
amendment could produce. (On this point
let me note that Dr. Joseph Ruth, Director
of Admissions for George Washington Uni-
versity, has commented that recent court
decisions prividing students and parents
with access to school application files have
already produced increasingly bland and less
useful letters of recommendation-prior to
and independent of the Buckley amend-
ment).
Some colleges might contend giving the
student the option to seek confidential or
non-confidential recommendations will still
render them useless. But surely this ought
to be the right of the student and the
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CONGRESSIONAL RECORD -SENATE November 19, 1:174
teacher to decide. Let it also be remembered
that the student is generally hoping to gain
something by obtaining a recommendation.
A bland, useless recommendations will not
be helpful to him. It should generally be to
his advantage to take the calculated risk or
gamble-his trade-off--of a confidential rec-
ommendation which could prove helpful to
his ends.
There is no reason, under this procedure,
for a teacher to be unwilling to write a
thoughtful, positive recommendation on a
student whose average grades may mask a
superior potential and imagination. And
surely ;he average admissions officer can dis-
tinguis:a between a bland letter which says
essentially nothing and an enthusiastic or
detailed letter which has something of value
to say. Even In terms of negative comments,
are we wrong assuming that most teachers
would ;save the moral courage of their con-
victions to say what they believe, even in
the face of disclosure to the individual in
question? Or is It that they have often been
too loose with their comments, too generous
with their personal prejudices and too spar-
ing in their objectivity?
The comments sent to us by the Chair-
man of a department at a major university
are perhaps instructive here:
"It may be that a recommendation 'is not
likely to be candid If the writer knows it
can be read by the subject', but it certainly
will not be an unfair one. Those of us who
make recommendations which may affect the
lives of others certainly should have the
courage and decency to be willing to have
our judgements questioned. If I am unwill-
ing to allow a person to see what I say about
him thin it is probably true that I should
not say the thing at all."
? R ? R
2. How broad is the term "any and all offi-
cial records, files, and data" to which stu-
dents dust be given access? Does it cover
psychiatric files, counselors files, all records
of every officer whether at home or in the
office? Does it cover the notes of a-dean or a
professor after he has talked with a student?
2. Response. This is the second most im-
portant objection to the Buckley amend,
ment, but I feel that most concerns here
can be favorably resolved with careful clari-
fication of the amendment language.
The -key language of the amendment on
this point is underlined in the following
quote:
"Any and all official records, files, and data
directly related to their children including
all material that is incorporated into each
student's cumulative record folder, and in-
tended for school use or to be available to
parties sutside the school or school system."
The amendment is addressing official rec-
ords or files or data which are intended for
school use or to be available to parties out-
side the school or school system. The lan-
guage is not intended to apply to the per-
sonal files of psychologists, counselors, or
professors if these files are entirely private
and not available to other individuals. Rec-
ords "intended for school use" should gener-
ally include those established by an office or a
division of the school for the use of that
office or division. The definition of the words
"official" and "intended for school use" are
of major importance. It appears that the
definitions and regulations being developed
at OE will employ a judicious interpretation
of these words, one which is not necessarily
all-inclusive, and which will give considera-
tion to - the use to which the files are put.
In general, it is to be hoped that the law shall
be Interpreted and implemented-and
obeyed--with an attitude of reasonableness.
The listing of specific items in the law which
follows the quoted part above is intended to
prevent the establishment of a separate.
"Unofficial" file by the school, as has hap-
pened in some areas where state or local laws
provide for access by parents and/or
students.
3. How will tae law affect career placement
files, "academic credentials" files, which con-
tain confidential recommendations?
3. Response: - Again, these files are set up
solely at the request of the student, with his
understanding that he will not have access
to such confidential recommendations as are
contained therein. If we can establish In the
law that such an understanding, i.e., waiver
of access, is a legitimate exception to the
general requirement of the law, then there
should be no problem here.
On the other hand, since these files will
have a significant effect on a student's aca-
demic and/or job prospects, it seems not only
reasonable, but also very important to the
student's interests, that he have some Idea
of what is being distributed to prospective
employers, etc., about his abilities and char-
acter. In suth a situation should a student
be required to rely solely on the judgment
of a placement office as to what unknown
(to him) comments and information are to
be sent out about him? It seems only fair
to at least give a student a listing of the
items about him that are being distributed
to prospective employers, etc.
4. Inventive teachers and officials will find
ways to circumvent the law.
4. Response. Very likely in some areas.
This is true of virtually every law. However,
the major purposes of the law will be largely
achieved: Parents and students will have
access to their school records, inaccurate,
misleading information will be able to be
removed from records; the general avail-
ability of confidential information on stu-
dents to parties outside the schools will be
strongly curtailed.
5. The law contains important ambiguities
that should be cured by legislative action,
There is little or no evidence of Congressional
fi:cent to provide guidance.
5. Response. There do exist some apparent
ambiguities, but most of the law is ' quite
explicit. The law has yet to be fully ex-
plained, This takes time for every law, and
even a committee Report is usually not ade-
quate. There is great evidence of Congres-
sional intent to provide guidance, to wit:
the meeting between the Congressional Edu-
cation committees and HEW on the regula-
tions and Implementation of the Buckley
amendment; the required submission of pro-
posed regulations pursuant to P.L. 93.-380
to the Congressional Education Committees
for their review and approval.
6. Will the ::amendment permit students
to have access to their parents' Confidential
Statements, etc.?
6. Response. It should not. The language
specifies "records, files and data directly re-
lated to their children" (the student). While
the Buckley office attempted but failed, only
because of confusion and inadequate time,
to get the Conference on H.R. 69 to specifi-
cally exempt Parents Confidential State-
ments, such Statements and related informa-
tion can ')e reasonably interpreted as not
being ditz'ctly rslated to the student, in the
sense that the data Is on other individuals.
It should, therefore, remain confidential.
7. Under the law, a college will not be able
to give any information about a student to
his parents without his consent.
7. Response. False. This is surely an overly
narrow reading of the law. Nothing in the
law is intended to prevent a school official
from informing a student's next of kin that
he is on the verge of suicide, has had an
accident, has been arrested, or even that he
Is doing very poorly In school and might
benefit from some thoughtful communica-
tion or assistance from his parents.
8. The Act requires institutions to provide
hearings for students to challenge any rec-
ord they consider inaccurate or misleading.
Does this mean that hearings must be held
if a student thinks his essay deserved an A
and it is "inaccurate and misleading" for his
records to show a B? Or If a professor's
evaluation, filed with the student's depart-
ment, says that the student showed little
creativity in his written work, must the in-
stitution offer a hearing on the issue or the
student's creativity? In short, what is the
scope of the right to a hearing?
8. Response. This is another red herring.
The question of a - grade is a matter to be
taken up with the teacher involved, and per-
haps the department chairman. The items
at Issue in nine out - of ten cases will be
erroneous information (as a grade Incorrectly
recorded), anecdotal comments or evalua-
tions by teachers, or personal Information on
the student or parents which probably has
no business being in such a file. There is no
pressing need, nor is it always desirable for
a law to fill in every Job and title of pro-
cedures and the like. There needs to be some
legitimate leeway for administrative discre'
tion and flexibility. Besides, no law could
every enumerate and pre-judge every pos-
sible situation that might arise under it.
Regulations are expected to outline basic
minimums in regard to hearing procedures.
9. Despite its evident purpose of protect-
ing students' privacy, the Act is likely to
cause invasions of that privacy. Credit bu-
reaus, - prospective employers, governmental
agencies conducting security clearances and
other organizations can now require students
to obtain all their records (psychiatric, fi-
nancial, disciplinary, evaluations, etc.) and
turn them over. Prior to the enactment of
the Act, institutions could protect students
by refusing to turn over such records even
if a student had given consent.
9. Response. This is something of an in-
sult to the intelligence, independence, and
backbone of today's student. Besides, who
can really assert that a college student is
better off at the mercy of any given school's
policy on records dissemination, rather than
his own judgment, and decision? Actually,
this is a somewhat superfluous issue because
the law only requires that a parent or stu-
dent have "the right to inspect and review"
the records, not have a copy of all of them.
The only records that he must be able to
obtain a copy of are those which the school
intends to give to an outside party!
10. Response. It is true that there were no
hearings on this law. However, more than
twenty states have enacted similar legisla-
tion, and the law was closely patterned on
the carefully considered recommendations
of respected experts and experienced profes-
sionals in such fields as law, education, ne 1i-
cine, counseling, school administration, aids
various academic disciplines (in particular
see the Guidelines of the Russell Sage Foun-
dation)..
Legislation in the form of amendments fre-
quently becomes law, and reported bills
frequently have had no or inadequate hear-
ings. In this case, the proposal had been
circulated to the Senate and several educa-
tional organizations more than two weeks
before it was passed. There was also ample
time during the Conference for interested
parties to suggest changes. In any event, the
Congress saw fit to- enact this legislation into
law.
11. Does the Act give any rights to a person
who has graduated and is no longer enrolled
as a student? Or does a person who has ap-
plied to a college but was not admitted have
any right of access to the college's records?
11. Response. By an oversight former stu-
dents were not specifically dealt with in the
amendment, although it can be argued that
a certain reading of the language would in-
elude former students. A court might extend
this right to them as an important civil right
of privacy, which falls "within the penumbra
of the Constitution."
The case of a person who applied but was
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member 19, 1974 CONGRESSIONAL RECORD - SENATE
not admitted to a college was not addressed
by the amendment. However, again, a cer-
tain reading of the language would include
application files. Thus, these questions re-
main to be resolved. It is worth noting here,
though, that at least one court decision has
upheld access to such files.
12. Should all college students be treated
the same vis a vis the rights established by
this law?
12. Response. While emotional maturity is
something that many people never achieve,
the rights of adult citizenships are by and
large conferred upon Americans at age 18
(voting, etc.). The House-Senate conferees
felt it fitting and proper to extend the rights
established by the Buckley amendment to
any student who is attending a post-sec-
ondary educational institution, and no com-
pelling body of evidence or argument has
yet been put forth to successfully contest
that judgment.
13. While this law may be appropriate for
elementary and secondary schools, colleges
and universities are different and the law
should not apply likewise to them.
13. Response. This argument is an extreme
case of in loco parentis. How is it that these
basic rights, which will very likely-be estab-
lished throughout the Federal Government
by the end of the 93rd Congress (see S. 3418)
are all right for an 18 year old high school
senior, but not for a 21 year old (or an 18
year old) college student?
14. Is a, right of private action created
to enforce the Act or is the HEW compli-
ance mechanism created by the Act the
only means of enforcement?
14. A right of private action was intended
in the Buckley amendment by reference to
another part of the Senate bill. However, the
Conference did not accept the complete
-language of the referred-to Senate provision,
and the explicit right of private action is
no longer in the law at this time. However,
it may be interesting to note that the na-
tional PTA and the League of Women Vot-
ers are considering establishing monitoring
activities to review and seek compliance
with this law.
15. The- applicability of Section 438(b)
(4) (A) of the Act is governed by its reference
to subsections (c) (1), (c) (2) and (c) (3).
There are no such subsections in the Act.
15. This is simply a technical printing
error caused by changes made in the amend-
ment in the Senate which necessitated re-
lettering the paragraphs. The reference
should be subsections (b) (1), (b)'(2), and
(b) (3). By the same token, the last section
of the law should be labeled (h), not (b).
16. The effort of locating and correcting
all the applicable school records will be a
severe problem for educational institutions,
particularly those in higher education.
16. Response. As stated in the beginning of
this memorandum, of course the change of
policies and habits occasioned by this law
will cause discomfort and some administra-
tive problems. So do most new laws. But
that is certainly not a serious or credible rea-
son to postpone implementation of the law
Comptroller General of the United a es,
(ii) the Secretary, (iii) an administrative
head of an education agency (as defined in
section 409 of this Act), or (iv) State edu-
cational authorities, under the conditions set
forth in paragraph (3) of this subsection;
and
"(D) in connection with a student's ap-
plication for, or receipt of, financial aid.
"(2) No funds shall be made available
ender any applicable program to any State
or local educational agency, any institution
of higher education, any community college,
any school, agency offering a preschool pro-
gram, or any other educational institution
which has a policy or practice of furnishing,
in any form, any personally identifiable in-
formation contained in personal school rec-
ords, to any persons other than those listed
in subsection (b) (1) unless-
"(A) there is written consent from the
student's parents specifying records to be
released, the reasons for such release, and to
whom, and with a copy of the records to be
released to the student's parents and the
student if desired by the parents, or
"(B) such information is furnished in
compliance with judicial order, or pursuant
to any lawfully issued subpoena, upon con-
dition that parents and the students are
notified of all such orders or subpoenas in
advance of the compliance therewith by the
educational institution or agency.
"(3) Nothing contained in this section
shall preclude authorized representatives of
(A) the Comptroller General of the United
States, (B) the Secretary. (C) an admin-
istrative head of an education agency or (D)
State educational authorities from having
access to student or other records which may
be necessary in connection. with the audit
and evaluation of Federally-supported edu-
cation program, or in connection with the
enforcement of the Federal legal require-
ments which relate to such programs: Pro-
vided, That, except when collection of per-
sonally identifiable data is specifically au-
thorized by Federal law, any data collected
by such officials with respect to individual
students shall not include information (in-
cluding social security numbers) which
would permit the personal identification of
such students or their parents after the data
has been collected.
"(4) (A) With respect to subsections (c)
(1) and (c) (2) and (c) (3), all persons,
agencies, or organizations desiring access to
the records of a student shall be required
to sign a written form which shall be kept
permanently with the file of the student,
but only for inspection by the parents or
student, indicating specifically the legiti-
mate educational or other interest that each
person, agency, or organization has in seek-
ing this information. Such form shall be
available to parents and to the school official
responsible for record maintenance as a
means of auditing the operation of the sys-
tem.
"(B) With respect to this subsection, per-
as fifteen to twenty separate files on a of higher education, any community college, sonal information shall only be transferred
given student scattered around the campus. any school, agency offering a preschool pro- to a third party on the condition that such
Some school officials have felt that the law gram, or any other educational institution party will not permit any other party to have
writ-
would require them to gather all these files which policy
identifiable records or release acss to such
(or ten consent ofitherparents of the student.
together r and and review them centrally. But this personally
is not necessitated by the law. All that is personal information contained therein) of "(c) The Secretary shall adopt appropri-
basically required is that the student be students without the written consent of ate regulations to protect the rights of pri.
Informed, if he makes an inquiry or re- their parents to any individual, agency, or vacy of students and their families in con-
quest, of the existence and the location of organization, other than to the following- nection with any surveys or data-gathering
these files, and that he or she be given the "(A) other school officials, including activities conducted, assisted, or authorized
S 19613
opportunity to review the appropriate files teachers within the educational institution
within forty-five days of the request. Indi- - or local educational agency who have legit-
vidual offices might be advised to begin a imate educational interests;
general review of their flies to see whether "(B) officials of other schools or school
there are things in them which cannot be systems in which the student intends to en-
adequately justified, or which they are roll, upon condition that the student's par-
afraid to let the student see. The question ents be notified of the transfer, receive a
of whether or not officials could or should copy of the record if desired, and have an
destroy items in the file, or send them back opportunity for a hearing to challenge the
to their source, after a student has sought content of the record;
access to his files has not yet been fully re- "(C) authorized representatives of (Si) the
solved, although the law seems to permit
it. There is a further question here as to
whether this would be in the best interests
of not only the students, but also the insti-
tutions involved. The anticipated speedy
passage of an amendment exempting confi-
dential letters and statements written in
'the. past will resolve this question.
PROTECTION OF THE RIGHTS AND PRIVACY OF
PARENTS AND STUDENTS
SEC. 513. (a) Part C of the General Educa-
tion Provisions Act is further amended by
adding at the end thereof the following new
section:
"PROTECTION OF THE RIGHTS AND PRIVACY OF
PARENTS AND STUDENTS
"SEC. 438. (a) (1) No funds shall be made
available under an applicable program to
any state or local educational agency, any
institution of higher education, any com-
munity college, any school,- agency offering a
preschool program, or any other educational
institution which has a policy of denying, or
which effectively prevents; the parents of
students attending any school of such
agency, or attending such institution of
higher education, community college, school,
preschool, or other educational institution,
the right to inspect and review any and all
official records, files, and data directly related
to their children, including all material that
is incorporated into each student's cumula-
tive record folder, and intended for school
use or to be available to parties outside the
school or school system, and specifically in-
cluding, but not necessarily limited to,
identifying data, academic work completed,
level of achievement (grades, standardized
achievement test scores), attendance data,
scores on standardized intelligence, aptitude,
and psychological tests, interest inventory
results, health data, family background in-
formation, teacher or counselor ratings and
observations, and verified reports of serious
or recurrent behavior patterns. Where such
records or data include information on more
than one student, the parents of any stu-
dent shall be entitled to receive, or be in-
formed of that part of such record or data as
pertains to their child. Each recipient shall
establish appropriate procedures for the
granting of a request by parents for access
to their child's school records within a rea-
sonable period of time, but in no case more
than forty-five days after the request has
been made.
"(2) Parents shall have an opportunity
for a hearing to challenge the content of
their child's school records, to insure that
or to argue that institutions of higher edu- the records are not inaccurate, misleading,
cation should be exempt from the law. In- or otherwise in violation of the privacy or
deed, the objection is in itself compelling other rights of students, and to provide an
evidence of the need for the Buckley opportunity for the correction or deletion of
amendment. Schools don't even know what any such inaccurate, misleading, or other-
files and information on their students are wise inappropriate data contained therein.
floating around where and being given to ." (b) (1) No funds shall be made available
whom! under any applicable program to any State
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 S 19614
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CONGRESSIONAL RECORD - SENATE November 19, 1974
by the Secretary or an administrative head
of an education agency. Regulations estab-
lished tinder this subsection shall include
provisions controlling the use, dissemina-
tion, and protection of such data. No survey
or data-gathering activities shall be con-
ducted by the Secretary, or an administrative
head of an education agency under an ap-
plicable program, unless such activities are
authorised by law.
"(d) For the purposes of this section,
whenever a student has attained eighteen
years of age, or is attending an institution
of post-secondary education the permission
or consent required of and the rights ac-
corded to the parents of the students shall
thereafter only be required of and accorded
to the student.
"(e) No funds shall be made available
under any applicable program unless the re-
cipent of of such funds informs the parents
of studen ,s, or the students, if they are
eighteen years of age or older, or are attend-
ing an institution of postsecondary educa-
tion, of the rights accorded. them by this
section.
"(f) The Secretary, or an administrative
head of an education agency, shall take ap-
propriate actions to enforce provisions of
this section and to deal with violations of
this section,' according to the provsions of
this Act, except that action to terminate
assistance may be taken only if the Secre-
tary finds there has been a failure to comply
with the provisions of this section, and he
has dete;^mined that compliance cannot be
secured i y voluntary means.
"(g) T:ie Secretary shall establish or desig-
nate an office and review board within the
Department of Health, Education, and Wel-
farefor the purpose of investigating, proces-
sing, reviewing, and adjudicating violations
of the provisions of the section and` com-
plaints whch may be filed concerning alleged
violations of this section, according to the
procedures contained in section 434 and 437
of this Act.".
(b) (1) ,i) The provisions of this section
shall become effective ninety days after the
date of enactment of section 438 of the Gen-
eral Education Provisions Act.
(2) (1) This section may be cited as the
"Family Educational Rights and Privacy Act
of 1974".
CONFERENCE REPORT EXPLANATION of ACTION
ON BUCKLEY AMENDMENT TO H.R. 69
Protection of the rights and privacy of
parents aid pupils.-The House bill provides
that the moral or legal rights of parents shall
not be ussurped. In addition, the House bill
provides that no child shall participate in a
research or experimentation program if his
parents object. The Senate amendment
"denies funds to institutions which deny par-
ents the right to inspect their chil-
,
ernment gives the judge a
reaSOria e
bl "
dren's files and gives parents the right dent Fords veto of new amendments to explanation why the document should
to a hearing to contest their child's strengthen the Freedom of Information not be made public, the judge must ac-
school records. The Senate amendment Act reveals a second blind spot in his
also den es funds to institutions with cept the explanation without looking at
policies of releasing records, without parental failure to learn the basic lessons of Wa- the the document himself and forming his
consent, to other than educational officials. tergate. own opinion.
Release of records is allowed only upon writ- President Ford seemed to have missed Only,if the Government fails to give
ten parental consent. The Secretary is di- the point of the Watergate trials when he this "reasonable" explanation, could the
rected to adopt regulations to protect stu- pardoned former President Nixon before court decide whether the document
ent 'tights of o 1'i ec and dev hs a lbenforce the legal process was allowed to run its should be made public. w the Department of Health, Education, and full course. Under the amendments in the vetoed
lf
That
We
are tc investigate and adjudicate viola-
was an unpardonable pardon. bill, our 'courts, not our bureaucrats, will
tions. Our laws must apply equally to each and have the final say as to what information
The conference substitute adopts the pro- all of us, including Presidents and former can legitimately be kept secret without
visions of the Senate amendment, includ- Presidents. violating the basicright of a democratic
ing in the list of persons who should have President Ford's ill-advised yeto of the people to know what is going on in their
the right to inspect student records those Freedom of Information Act amend- Government.
students who attend postsecondary institu-
y
ng
as
mate-
gate-t:he dangers of undue secrecy In judge's chambers, and if the Government
application for, or receipt of, financial aid. Government. did not like a judge's ruling, it could
The conferees Intend that this exception The Watergate disclosure showed how always of course appeal to a higher court.
should allow the use of social security num- public officials and Government bureau-
bers In connection with a student's applica-
tion for oats try to cover up mistakes, misjudg-
The for,
conl erence receipt subsof, titute financial nancial adds aid. that noth- merits and even illegal acts under the
ing in these provisions of the Senate amend- cloak of "national security."
meat shall preclude official audits of federally Those people were more interested in
supported education programs, but that data job security than in national security.
so collected shall not be personally identifi- They were more concerned about saving
able. The conference substitute also provides - their own necks than about safeguarding
that the consent and rights of the parents the Nation.
of a student transfer to the student at age
secondary education institution. No action to
terminate assistance for violation of these
provisions of the Senate amendment shall be
taken unless the Secretary finds failure to
comply, and that compliance cannot be
secured by voluntary means.
The conference substitute also adopts the
provisions of the House bill relating to pro-
tection of parental and pupil rights, with
amendments. The conference substitute pro-
vides that all instructional material which
will be used In connection with any research
or experimentation program or project shall
be available for inspection by parents or
guardians.
In approving this provision concerning
the privacy of information about students,
the conferees are very concerned to assure
that requests for information associated with
evaluations of Federal education programs
do not invade the privacy of students or pose
any threat of psychological damage to them.
At the same time, the amendment is not
meant to deny the Federal government the
inforpation it needs to carry out the evalu-
ations, as is clear from the sections of the
amendment which give the Comptroller Gen-
eral and the Secretary of HEW access to
otherwise private information about stu-
dents. The need to protect students' rights
must be balanced against legitimate Federal
needs for information.
Under the amendment, an educational
agency would have to administer a Federal
test or project unless the anticipated inva-
sion of privacy or potential harm was de-
termined to be real and significant, as cor-
roborated by a generally accepted body of
opinion within the psychological and mental
health professions. In short, the amendment
is intended to protect the legitimate rights
of students to be free from unwarranted in-
trusions; it is not intended to provide a
blanket and automatic justification for a
school system's refusal to administer
achievement tests and related instruments
necessary to the evaluation of an applicable
program.
petuate the Nixon style of letting Gov-
ernment bureaucrats manipulate the
Public by deceiving the press.
We are all aware of recent efforts by
administration officials-especially those
at the Pentagon, the State Department,
the Treasury, and the Office of Manage-
ment and Budget-to clamp down on so-
called "premature" information to the
press,
The Freedom of Information Act
amendments, which Congress passed ear-
lier this year are designed to broaden
public access to-Government documents.
We want to speed up the process of get-
ting the Government to respond to legit-
imate requests for information by mem-
bers of the- public and the press.
Under present procedures, for example,
it took 13 months before the Tax Reform
Research Group was able to get released
to the public earlier this week 41 docu-
ments showing how the Internal Revenue
Service's Special Services Staff investi-
gated dissident groups.
The amendments also provide for judi-
cial review of disputes over what infor-
niation could be made public.
This is in keeping with the American
tradition of having disagreements set-
tled by a third party-the courts.
I supported the new legislation because
I believe in the freest possible flow of
information to the people about what
their government is doing, and why. The
people must have access to the truth if
they are to govern themselves intelli-
gently and to prevent people in power
from abusing the power.
The legislation has built-in safeguards
against the disclosure. of classified infor-
mation that might endanger national se-
curity.
The way the President wants the bill
VETO REVEALS WATERGATE BLIND to read, a judge would have to assume
SPOT that a classified document was, and re-
mains, properly classified. If the Gov-
Mr. CRANSTON. Mr. President
Presi-
"
ments is further evidence that he has not Arguments over decl
i
sif
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