In 40 years of working with clients of some sort, I have not actually ever used a written contract. My only experience is with oral contracts. At this point perhaps it would be helpful to review my contract with my students about their assignments.
On the first day of each of my classes I announce that there will be homework assignments and examinations that will be turned in to me. I say that this will be used to help assign a grade, but that grades are a secondary consideration. The main reason I ask for assignments is to gauge how well the concepts, I think I should be teaching, are absorbed. I say that I hand back all assignments, often using email to expedite this process. I say that I may keep copies to review my effectiveness for the current semester and for future semesters. For the last several terms I have then discussed the honor code.
I consider that the copies I keep are just for the purpose I told the students about. For example, I would personally feel that I would be violating my oral agreement with my students if I went through my stack of assignments looking for prospective pupils for a colleague who does tutoring on the side. In medical education, I would consider it un-ethical to mine my data for the advantage of pharmaceutical houses or personal injury attorneys.
I am certainly not an attorney. I know very little about FERPA. I have studied HIPAA from the time it was HIPPA (before the Clinton administration dropped Privacy from the acronym.) About 10 years ago I heard a talk by Donald Berwick (ihi.org), where he said, "The patient record of the future belongs to the patient PERIOD." Understanding this simple statement simplifies the 1600 page HIPAA privacy summary a great deal. Physicians have had a difficult time accepting that the records we write on are not ours but belong to the patient, who shares them with us at their discretion. This transition is far from complete. Education also needs to move more quickly in this direction.
The Patriot Act, which requires releases of information along with imposing a gag order is a problem well beyond this page.
In medicine there is a long running discussion about balancing the legitimate needs of quality assurance and privacy. To strike a balance, some estimate needs to be made of the benefits on both sides. A detailed analysis of a single case can have value in identifying a problem. Doing a detailed analysis of a small number of somewhat similar cases when the cases are not randomized and the analysis is not blinded is usually statistically worthless.
I admit that this is a vague concept. Precisely because it is vague, when there is any doubt, I think the student should be asked before releasing any of their records. In medicine there is the idea of implied consent to treatment given by the patient walking in the door. This is a helpful way of looking at release of information problems when the urgency of the situation is a factor. To sharpen that, the exception is to expedite care to the patient's advantage and not for increasing the convenience of the caregiver.
John M. Miller M.D.
March 21, 2006