Earlier this month, the U.S. Department of Education sent a letter to college presidents aimed at continuing efforts to curb college student voting. The latest letter threatens colleges and universities if they participate in or use data from national learning, voting, and engagement studies, claiming that if they do so, they “may be at risk of being found to be in violation of FERPA.”
The Family Educational Rights and Privacy Act is a federal law that protects the privacy of student education records and applies to any institution that receives funds from the Department of Education. Like many actions by this administration, this letter is intended to have a chilling effect because the department has not yet determined whether participation in or use of the NSLVE study violates any privacy regulations.
Since its inception in 2013, with more than 1,000 colleges and universities across the country now choosing to participate, NSLVE is a study of student political engagement at higher education institutions. NSLVE uses data that colleges and universities voluntarily provide to the National Student Clearinghouse, which matches student registration records to public voting files to determine whether students are registered to vote and whether they voted, rather than who they voted for. NSLVE, based at Tufts University, then uses the de-identified data it receives to send participating campuses a confidential report on their student voting participation.
Under the guise of protecting student privacy, the Department of Education is weaponizing FERPA in an attempt to achieve the Trump administration’s goal of weakening voter participation, especially among college students, for political reasons. Education Secretary Linda McMahon herself said in a press release announcing the new guidance that “America’s colleges and universities should focus on teaching, learning, and research, not influencing elections.” The department acknowledged in its guidance letter that its assessment of NSLVE’s FERPA violations was based on a “preliminary analysis,” and that ED only expressed “concerns” about NSLVE’s use of the data. The Department has not concluded that NSLVE or the use of NSLVE data violates any law, including privacy laws.
NSLVE primarily uses directory information (name, address, and date of birth), which institutions may disclose without consent as long as the institution makes a general announcement (including notice of the option not to disclose) at the beginning of the academic year. Additionally, when additional information (such as gender, race/ethnicity, and degree-seeking status) is provided, this is allowed because it falls under FERPA’s “Learning Exception.”
This exception allows information to be shared for research “to improve instruction.” NSLVE’s research is designed to help universities improve campus citizenship education—a stated goal of this administration. Additionally, NSLVE reports do not contain personally identifiable information and are shared only with the institution itself. It is for these reasons that the Department of Education has found this work permissible under FERPA since the program’s inception more than a decade ago.
It is critical for the university to understand what the letter does and does not contain. Students’ data should be protected, and the federal government has a key role to play in protecting their data. The Department of Education has an obligation to use its resources to do this. Most importantly, governments must ensure that any action taken by institutions puts student privacy first. But charging potential student privacy violations when there is no such violation not only wastes resources but undermines real interests.
As recognized by the Higher Education Act’s requirement that higher education institutions provide voter registration forms to all students, universities have an important role to play in promoting civic engagement and democratic participation among their students. As long as the university’s practices are consistent with data sharing permitted by FERPA, the federal government may not interfere with a university’s participation in NSLVE, especially in the face of threats that are not supported by legal findings. Insights from NSLVE are critical to strengthening nonpartisan civic engagement among college students. Limiting the use of data in an election year is not about protecting students but is harmful to them and our democracy.
