Within FERPA, the term “education program” appears only in the program evaluation exception, permitting access only “in connection with the audit and evaluation of Federally- supported education programs, or in connection with the enforcement of the Federal legal requirements which relate to such programs.” 20 U.S.C. § 1232g(b)(3) (emphasis added); see also id. § 1232g(b)(5) (“any federally or state supported education program”).

And this expansive definition matters because authorized representatives can only gain access to education records in “connection with the audit and evaluation” of federally and State- supported education programs. 20 USC § 1232g(b)(3); (b)(5). By broadening the definition of “education programs” to encompass these IDEA’s non-academic services and other programs like “substance abuse and violence prevention,” which that are not “principally engaged in the provision of education,” auditors and evaluation can have virtually limitless access to education records in order to evaluate these “education” programs.

FERPA’s definition of “education record” encompasses a wide swath of “information directly related to the student” that is “maintained by an educational agency or institution” regardless of the purpose or program to which it is related. See 20 U.S.C. § 1232g(a)(4). Accordingly, if the agency or institution wishes to evaluate any of its own programs using those records, it must employ one of the FERPA exceptions.

The Final Rule’s Expansive Definition For “Education Programs” Is Not a Reasonable Construction Under the FERPA The FERPA grants access to education records “in connection with the audit and evaluation of Federally-supported education programs, or in connection with the enforcement of the Federal legal requirements which relate to such programs.” 20 U.S.C. §1232g(b)(3); see also id. § 1232g(b)(5).

Case 1:12-cv-00327-ABJ Document 13 Filed 08/09/12 Page 2 of 14 3 student or other records which may be necessary in connection with the audit and evaluation of [federally or state] supported education programs, or in connection with the enforcement of the Federal legal requirements which relate to such programs.” 20 U.S.C. § 1232g(b)(3) (with additions from §§ 1232g(b)(1)(C) and (b)(5)). Thus the term “education program” shapes the scope of the exception by defining what may be audited and evaluated.

If a school chooses to offer an appeals process it has flexibility to determine the type of review it will apply to appeals, but the type of review the school applies must be the same regardless of which party files the appeal. 33 20 U.S.C. § 1092(f) and 20 U.S.C. § 1232g(b)(6)(A). Case 1:16-cv-01158-RC Document 19-3 Filed 09/01/16 Page 45 of 54 Page 38 – Questions and Answers on Title IX and Sexual Violence I-2.

Vassar College, 35 F.3d 709, 714, 715 (2d Cir. 1994)..............................14, 20, 22 Statutes & Rules Title IX of the Education Amendments of 1972 ..................................................... passim Family Educational Rights and Privacy Act, codified at 20 U.S.C. § 1232g .................passim Federal Rule of Civil Procedure 56(c).....................................................................13 20 U.S.C. § 1681(a)..........................................................................................14 28U.S.C.2201 ............................................................................................... 8 20 U.S.C.A. §§ 1232g(b)(1)(A)-(L); (b)(3), (b)(6)(A); (b)(6)(B) .....................................21 20 U.S.C.A. §§ 1232g(a)(2) ................................................................................21 34CFR99.31 ............................................................................................... 21 34CFR106.8 ............................................................................................... 14 Restatement (Second) of Contracts § 205 (1981)........................................................13 General Business Law § 349(a)........................................................................14, 15 Prosser and Keeton, Torts § 30 at 164-65 (5th ed 1984).................................................18 Prosser and Keeton, Torts § 53 (5th ed)..................................................................18 Restatement (Second) of Torts § 314A....................................................................18 The Restatement (Third) of Torts: Liability for Physical Harm § 40.................................26 H. Bader, "Suing Over Star Chamber Hearings," Mindi

As discussed in Section III.B., FERPA itself creates an exception to allow educational institutions to release or provide access to student records “pursuant to any lawfully issued subpoena.” 20 U.S.C.S. §1232g(b)(2)(B). Even more, Gentiva is not seeking the types of student information FERPA protects, and has provided avenues for Plaintiffs to ensure the any such information is redacted, if the school inadvertently fails to do so.

Atthe very least, imposing a broad duty of care will necessarily exacerbate litigation on all fronts, as institutions find themselves between a rock and a hard place—vulnerable to liability when a student who has received campus mental health services is involved in a physical incident, but facing potentially harsh consequences from any attempt to bar such students from campusordisclose their disabilities because of protections the law has putin place to guard against this kind of conduct. (See, e.g., Rehabilitation Act of 1973, §504, 29 U.S.C. §794; Americans with Disabilities Act of 1990 (ADA), 42 U.S.C. §12101 et seq. [both statutes 37 prohibiting colleges/universities from discriminating against students on the basis of disability, actual or perceived, and requiring provision of reasonable accommodations for disabled students]; Family Educational Rights and Privacy Act of 1974 (FERPA), 20 U.S.C. §1232g [safeguarding students’ right of privacyin their “education records”’].) Rosen’s proposed duty would create a perverse incentive not to provide the very sort of broad mental health services that prevent violent acts and suicides in the university community, and to afford special-needs students only the most basic services.

Thus unpacked, Plaintiffs' cause of action is decisively refuted by a dead-on Supreme Court decision and subsequent confirmatory rulings. Plaintiffs allege that "although no private right of action exists under 20 USCS § 1232g, action under 42 USCS § 1983 may be premised on violation of § 1232g," citing Tarka v. Cunningham, 917 F.2d 890 (5th Cir 1990). (Second Amended Complaint, par.