Why Student Data Privacy Requires a Governance Approach
Compliance checklists fail in education because they address privacy as a one-time project rather than an ongoing operational function. An institution might complete a FERPA assessment, remediate identified gaps, and consider itself compliant — until a vendor changes data handling practices, a teacher adopts an unapproved EdTech tool, or a state enacts new privacy requirements. Without governance structures to monitor these changes, compliance erodes.
Student data carries unique sensitivity. Education records document academic performance, disciplinary incidents, special education needs, health conditions, and family circumstances; information that shapes opportunities and follows students throughout their lives. Regulatory fragmentation compounds the challenge: US institutions operate under FERPA, state data breach laws, and increasingly, state-specific student privacy statutes, while institutions serving international students must simultaneously comply with GDPR.
Governance differs from compliance projects in three ways: it's permanent institutional infrastructure rather than temporary projects; it addresses the full data lifecycle across all organizational units rather than focusing narrowly on specific systems; and it creates accountability: when vendor incidents occur, governance structures clarify who investigates, notifies affected individuals, and implements corrective measures.
What Counts as Student Data Under FERPA and GDPR
FERPA's Definition of Education Records and Personally Identifiable Information
Under FERPA, education records are documents that directly relate to a student and are maintained by an educational institution or party acting on its behalf. This encompasses transcripts, grades, disciplinary records, health information, financial data, special education evaluations, and behavioral intervention plans.
FERPA's concept of personally identifiable information is deliberately expansive, including both direct identifiers (student name, Social Security number, student ID) and indirect identifiers that could identify a student when combined with other information (date of birth, place of birth, mother's maiden name). Modern identification mechanisms create new considerations: biometric records such as fingerprints for meal payments, facial recognition for attendance, and retina scans for building access constitute personally identifiable information under FERPA.
GDPR's Approach to Student Personal Data and Special Categories
GDPR defines personal data broadly to include names, contact information, student identification numbers, grades, attendance records, and behavioral observations. GDPR introduces a critical distinction absent from FERPA: special category data requiring heightened protection. This includes health information, racial or ethnic origin, religious beliefs, genetic data, biometric data, and in educational contexts, safeguarding concerns, special educational needs documentation, and information about children in care.
This distinction matters operationally: standard personal data requires a lawful basis for processing, while special category data requires both a lawful basis and an additional condition (typically explicit consent, legal obligation, or public interest). Many schools collect special category data unnecessarily at pre-enrollment when basic information would suffice. The principle: collect only what is necessary for the specific stated purpose.
Contemporary Student Data Sources
Educational institutions collect student data across platforms creating fragmented landscapes:
- Learning Management Systems: Coursework, discussion posts, time-spent-on-task, performance data
- Student Information Systems: Enrollment, grades, attendance, disciplinary records, contact information
- EdTech vendor tools: Assessment platforms, proctoring systems, tutoring applications
- Analytics platforms: Learning analytics, predictive intervention systems, behavioral tracking
- Biometric systems: Fingerprint scanning, facial recognition, iris scanning for access control
- Data warehouses: Aggregated student data consolidated from multiple sources
Institutions often discover through governance work that they have more data sources than recognized, with shadow IT creating ungoverned data relationships that surface only when incidents occur.
FERPA: Governance-Relevant Requirements
Consent Requirements and Key Exceptions
The foundational FERPA principle: institutions must obtain signed, dated written consent from parents or eligible students before disclosing personally identifiable information from education records. However, FERPA includes significant exceptions:
The school official exception permits internal staff and contractors performing institutional services to access education records without separate consent if designated as "school officials" with legitimate educational interest in the institution's annual FERPA notification. This exception covers third-party vendors, but only when specific conditions are met.
The directory information exception allows schools to designate certain categories (name, address, phone, email, grade level, sports participation, honors) as directory information and disclose without consent, provided schools notify parents and permit opt-outs. Mismanagement of opt-outs constitutes a common FERPA violation.
Other exceptions include transfers to schools where students enroll, disclosures to financial aid officials, health or safety emergencies, organizations conducting studies on behalf of the school, and responses to judicial orders.
Vendor Management and the School Official Exception
FERPA's vendor provisions create a critical governance principle: schools remain liable for vendor compliance. When third-party vendors access education records, they function as "school officials" subject to the same restrictions as internal staff.
For vendors to lawfully receive personally identifiable information under the school official exception, four conditions must be satisfied: the vendor must perform an institutional service or function; the vendor must meet criteria designated in annual FERPA notification as a "school official with legitimate educational interest"; the vendor must be under the school's direct control regarding data use and maintenance; and the vendor must use education records only for authorized purposes without redisclosure.
Essential vendor contract provisions include data security measures (encryption, access controls), breach notification requirements, data retention and secure disposal procedures, subcontractor compliance provisions, prohibition on data mining and commercial use, and audit rights allowing schools to verify vendor practices.
Learn more: Secure Privacy's guide to vendor privacy agreement tracking provides detailed templates and monitoring frameworks specifically designed for managing FERPA-compliant contracts across educational technology ecosystems.
Enforcement and Recent Guidance
FERPA enforcement occurs through the Family Policy Compliance Office, which investigates complaints filed within 180 days. Penalties vary by violation severity: unauthorized disclosure typically results in $15,000–$75,000 fines; directory information misuse $8,000–$35,000; denial of access rights $12,000–$45,000. Beyond fines, consequences include federal funding reviews, mandatory training, third-party audits, and potential withholding of federal funding for persistent noncompliance.
In March 2025, the Department of Education issued significant guidance clarifying that gender support plans constitute education records regardless of where maintained; schools cannot withhold student safety information from parents under FERPA; records relating to multiple students cannot be withheld based on another student's information unless redaction would destroy meaning; and annual FERPA notification must reach parents through reasonably accessible means.
GDPR: Education-Specific Obligations
Lawful Bases for Processing Student Data
Unlike FERPA's default consent requirement, GDPR requires institutions to establish a lawful basis for each processing activity before collecting data. Educational institutions typically rely on different bases for different activities:
Public task serves as the primary basis for public schools. Teaching, student assessment, examination administration, and safeguarding constitute tasks carried out in the public interest with statutory foundations. This basis does not require consent and appropriately covers core educational functions including digital tools directly supporting teaching.
Legal obligation applies when processing is required by law — reporting attendance to authorities, providing mandated special needs support, making safeguarding referrals.
Consent functions differently under GDPR than FERPA. GDPR requires consent be freely given, specific, informed, and unambiguous. Schools should use consent sparingly, never for core educational functions. The Data Use and Access Act 2025 cautions against "coerced consent" in service delivery. Consent appropriately applies to genuinely optional features: behavioral analytics for personalized recommendations, optional communications, photography for yearbooks, research participation.
For minors, GDPR generally requires parental consent when relying on consent as the lawful basis, with member states setting age thresholds (typically sixteen, ranging from thirteen to eighteen).
Student Rights and Institutional Response Procedures
GDPR grants eight distinct rights creating operational requirements:
Right to be informed requires clear privacy notices at data collection explaining what data is collected, why, who accesses it, retention periods, and how to exercise rights.
Right of access entitles students to request personal data. Institutions must respond within one month (possible two-month extension), providing data copies in commonly used formats.
Right to rectification allows correcting inaccurate data. Institutions must establish clear channels for requesting corrections.
Right to erasure permits deletion requests, though institutions can refuse when retention is necessary for legal obligations, archiving in public interest, or defending claims.
Right to restrict processing enables limiting data use while disputes are resolved, requiring system-level controls flagging records under dispute.
Right to data portability requires providing personal data in machine-readable formats for transfer to other controllers.
Right to object permits opting out of processing based on legitimate interests or direct marketing.
Rights related to automated decision-making require human review of decisions based solely on automated processing with significant effects—applicable to predictive intervention systems, algorithmic flagging, or automated course placement.
Breach Notification Requirements
GDPR requires institutions to notify the relevant Data Protection Authority within seventy-two hours of becoming aware of a breach. Notification to affected data subjects is required without undue delay when breaches pose high risk to rights and freedoms—typically breaches involving special category data, financial information, or widespread compromise.
FERPA does not mandate breach notification to families, requiring only that unauthorized disclosures be recorded for discovery when records are inspected. However, nearly all US states have adopted breach notification laws requiring schools to notify affected families within specific timeframes, typically thirty to sixty days.
Learn more: Secure Privacy's automated DPIA tool guide explains how to systematically assess privacy risks before implementing high-risk technologies including AI systems, biometric systems, and student monitoring platforms.
