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Privacy COUNTS: Act Now to Ensure That Your Census Participation Complies with Student Privacy Laws

Preparations are well underway for the largest peacetime mobilization of federal resources—the decennial census.  As a result of their “hard to count” student populations, as well as their obligations under federal student privacy laws, institutions of higher education (IHEs) are faced with unique decision points as they work to respond to the 2020 Census.  IHEs must consider their responsibility to protect the privacy of confidential student information under the Family Educational Rights and Privacy Act (FERPA) in deciding how to respond to the 2020 Census. While you may have already selected your IHE’s enumeration method with the Census Bureau, IHEs should decide by the March 6, 2020 deadline whether a different enumeration method would be more efficient and effective given their FERPA obligations.      

Article I, Section 2 of the U.S. Constitution mandates that a count of the nation’s population occurs every 10 years. Census data is used in a variety of crucial government functions, from determining the reapportionment of Congressional representation to the distribution of billions of dollars of federal funds to states and local communities for infrastructure and services, including education. Counting adults in the 18-24 age group poses unique challenges, in large part because portions of this age group frequently relocate to and from IHEs. To facilitate an accurate count of each person at the location where he or she lives for a majority of the time during the census year, the Census Bureau allows for a special enumeration process for individuals who live in “group quarters” that are owned and operated by third-parties, such as campus housing. 

The Census Bureau began its advance contact operations with IHE administrators in early February to identify information about the amounts and types of campus housing and the date each IHE plans to conduct its enumeration. Each IHE also must select one of four methods of enumeration: 

  1. In-Person Interview: A census worker conducts an in-person interview to collect data from each campus housing resident; 

  2. Drop-off/Pick-up of Questionnaire: A census worker leaves questionnaires to be completed by each campus housing resident, then returns to collect the completed questionnaires at an agreed-upon time; 

  3. Paper Response Data Collection: The IHE designates a group quarters administrator to provide a paper response on behalf of all campus housing residents; or 

  4. Electronic Response Data Transfer (eResponse): The IHE group quarters administrator submits an electronic response on behalf of all campus housing residents directly to the Census Bureau. 

IHEs may change their selected enumeration method before March 6, 2020. 

IHEs may consider designating a group quarters administrator to provide a paper or electronic response as the most efficient and least disruptive method of capturing an accurate and complete count of all campus housing residents. However, disclosing student information to the Census Bureau also triggers obligations under FERPA. Under FERPA, an IHE may disclose personally identifiable information (PII) of students only if an eligible student has provided prior written consent, or if a specific FERPA exception applies. Although there is no FERPA exception that specifically addresses disclosures to the Census Bureau, FERPA does permit an IHE to disclose designated “directory information” without written consent, provided that the student has not opted out of directory disclosures. However, certain PII requested by the Census Bureau—such as each student’s race, sex, and ethnic origin—cannot be designated as directory information.  

The applicability of FERPA to the disclosure of PII in connection with the 2020 Census was recently addressed in a January 29 letter to IHEs from the U.S. Department of Education and an accompanying webinar.  Although the January guidance letter notes that releasing aggregated, de-identified data on race, sex, and ethnic origin generally is not considered as a release of confidential PII under FERPA, the webinar notes that this type of aggregated data may be of limited value to the Census Bureau to capture an unduplicated count of all members of the campus population. IHEs should act now to ensure that their plans to disclose student information to the Census Bureau complies with FERPA’s protections of student PII.  Consider the following questions:

  • If your institution has selected a paper or eResponse enumeration method, has your institution developed a plan to obtain written consent from all eligible students prior to disclosing a student’s race, sex, and ethnic origin?  

  • If your institution anticipates only releasing directory information, has your institution clearly defined what is designated as directory information and developed a plan to protect the information of students who have opted out of directory disclosures?

  • If your institution has selected the individual questionnaire enumeration method, have you considered how questionnaires can be completed and returned in a manner that protects the confidentiality of PII that a student chooses to self-disclose? 

We encourage you to ensure that your institution’s plan to release information in response to the 2020 Census also complies with your FERPA obligations to protect the privacy of confidential student information. 

Copyright © 2020 Womble Bond Dickinson (US) LLP All Rights Reserved.

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About this Author

Beth Tyler Jones, Womble Carlyle Law Firm, Employment and Education Law Attorney
Partner

Beth practices primarily in the areas of employment and education law. She concentrates her practice on providing effective counseling and compliance assistance to enable her clients to manage risks proactively. She is a leader of the Firm’s Education Team.

Beth uses her experience as a human resources professional and in-house legal counsel to assist employers, both public and private, in complying with all federal and state employment laws including preparing policies, procedures, programs, plans, handbooks...

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Rebecca Fleishman, Womble Carlyle Law Firm, Raleigh, Education and Employment Attorney

Rebecca Fleishman practices in the areas of education and employment law, representing and advising institutions of higher education, public charter schools, and corporations in litigation and day-to-day compliance. She counsels clients in employment, student, and policy matters and draws on her experience as a federal judicial clerk and staff attorney to guide and advocate for clients through all stages of litigation.

Prior to joining Womble Carlyle, Rebecca represented public school systems in student and employment matters and in litigation. She has represented clients before the North Carolina Office of Administrative Hearings, the North Carolina Department of Public Instruction, the U.S. Department of Education Office for Civil Rights, the U.S. Equal Employment Opportunity Commission, and North Carolina state and federal courts.   

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Benita N. Jones Education and Student Issues Attorney North Carolina
Counsel

A member of the firm’s Education and School Law Team, Benita Jones has extensive experience providing legal support and counsel to educational institutions on a broad array of state and federal legal issues including Title IX, VII, Americans with Disabilities Act, constitutional law, contract law, tort law, policy development and governance, employment law, and student legal issues. She has worked collaboratively on litigation matters with the North Carolina Attorney General’s Office and attorneys from the UNC System Office. 

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