Is student handwriting confidential?

Today’s Daily Dawg comes to you courtesy of Morgan Beam from our firm’s Houston Office. Morgan corresponded with the Student Privacy Policy Office (SPPO) about the confidentiality of student handwriting samples.  The issue frequently comes up when the parent of Student A wants to see the written statement of Student B.  The parent does not know the identity of Student B and the school is required to maintain B’s anonymity.  If the school discloses the student’s handwritten statement is that a disclosure of the student’s identity?

SPPO says that it is.  FERPA protects “personally identifiable information.”  That term includes a “biometric record.”  A handwriting sample is a “biometric record.” As usual, this kind of arcana is addressed in obscure federal regulations.  Specifically, 34 CFR 99.3(d) which says that a “biometric record” is a form of “personally identifiable information.”  So then you have to find the definition of “biometric record” which is also at 34 CFR 99.3:

“Biometric record,” as used in the definition of “personally identifiable information,” means a record of one or more measurable biological or behavioral characteristics that can be used for automated recognition of an individual. Examples include fingerprints; retina and iris patterns; voiceprints; DNA sequence; facial characteristics; and handwriting. 

I hope you find that a useful piece of information.  The letter from SPCO went on to provide detail about various situations in which disclosure of a handwritten note would be appropriate and when it would not. It’s too complicated for our Daily Dawg One Issue At A Time Pace.  So I’ll just suggest that you call Morgan or any of the other terrific lawyers in our firm if you have questions along these lines.  But the starting point is that a sample of a student’s writing is protected by FERPA, so don’t disclose it without giving it some thought. 


Got a question or comment for the Dawg?  Let me hear from you at jwalsh@wabsa.comTomorrow:  Important Title IX case….