How the Law Affects Schools' Policies on Educational Records and Student Recommendations

Abstract

Respiratory therapy educators are concerned with maintaining and releasing educational records and writing recommendations, with both tasks having legal obligations. Maintenance of educational records is governed by the Family Educational Rights and Privacy Act of 1974, which regulates only educational institutions that receive funds from the U.S. Commissioner of Education. This act and its subsequent regulations allow students access to their educational records and limit access to those parties who have the student's written permission. Subsequent regulations define an educational record, limit access to certain admissions records, provide a mechanism for challenging the record's content, and provide for destruction of educational records. Giving recommendations is covered by common law governing defamation and in- vasion of privacy. Violation of either right creates direct liability for the respiratory therapy educator and vicarious liability for the institution that employs him. To claim a defendant liable, a plaintiff would have to prove that the defendant, by giving the recommendation, made false statements that damaged the plaintiff's professional reputation. He would not necessarily have to prove that he actually suffered any harm to collect damages. An adequate defense to either charge would be either the truth of the recommendation or the fact that it was privileged communication, even if it was not true but was not made maliciously.