GPSolo Magazine - April/May 2006

Who’s Reading Johnny’s School Records?

Your longtime client calls you one evening in great distress to tell you that she just got an expulsion notice for her 13-year-old son—and the hearing is in two days. Your college-age daughter calls to tell you she has been accused of cheating—and her hearing is tomorrow. Another client is dissatisfied with his child’s special education program and wants to know his options. What do you do if you are not an education law attorney?

One of the first things you should do, in any of these situations, is to request access to and a complete copy of the student’s educational records from the school. You can do this even if you are a general practitioner with no knowledge of the substantive law. The records will provide you with a wealth of information. What rights do you have to see those records? Check out the Family Educational Rights and Privacy Act (FERPA) statute and its regulations.

Most parents have seen notices in small print from their child’s school or college about their rights under FERPA, maybe inside a student handbook or sent in a letter from the school. These notices are provided because FERPA requires annual notification to parents and eligible students of rights under the act. Most parents also routinely ignore these notices. This is a mistake. Parents who like to pride themselves on their involvement in their children’s education are generally ignorant of their rights under FERPA. All parents and school administrators should have a basic working knowledge of this statute.

FERPA: An Overview

FERPA is the Family Educational Rights and Privacy Act of 1974 (20 U.S.C. §1232g; 34 CFR Part 99), also known as the Buckley Amendment. This law was enacted at a time when some schools denied parents access to their child’s school records and did not accord any privacy rights to students in their records.

FERPA applies to schools that receive federal funds. This includes direct funds and indirect funds through grants or loans to students in attendance. FERPA gives parents certain rights regarding educational records. These rights transfer to students at age 18 or when in a post-secondary institution. FERPA provides for:

• access to educational records within 45 days;

• privacy in the educational records, with some exceptions;

• a right to request an amendment of records and a hearing process regarding amendments; and

• a right to file a complaint with the Family Policy Compliance Office of the U.S. Department of Education.

Keep in mind that, although FERPA is the central federal statute about student records, there are other statutes that impact the confidentiality rights of students. At the federal level, there is the No Child Left Behind Act of 2001 (NCLB); the Individuals with Disabilities Education Act (IDEA); section 504 of the Rehabilitation Act of 1973; parts of the National Defense Authorization Act for Fiscal Year 2002; and the Protection of Pupil Rights Amendment (PPRA), 20 U.S.C. §1232h(b). States may also have their own confidentiality and access laws.

Most people think of “educational records” as just the one-page transcript of grades, often called “the permanent record” by parents unfamiliar with the law. But an educational record is much more than that; it is any record maintained by the school and containing information directly related to a student. A record is broadly defined to include any information recorded in any way, which includes handwriting, print, computer media, video or audio tape, film, microfilm, and microfiche.

A teacher’s hand-scrawled note could be an educational record, as could a note written by a parent to a school. A teacher’s e-mail about a student to an administrator can also be an educational record. The student does not have to be identified by name—the record just has to directly relate to the student. And it doesn’t matter where the record is maintained. Education records for college students are not limited to records maintained by the registrar. Documents in a professor’s file in his office might qualify as education records. A school can’t destroy FERPA protection for a document by hiding it in a separate file.

Not every piece of paper about a student is an educational record. There are exclusions to this broad definition. Two of the most frequently encountered exceptions are “sole possession” records and “law enforcement unit” records.

Records in the sole possession of school personnel are excluded. A “sole possession” record is one that is in the sole possession of the maker and is not accessible or revealed to any other person except a substitute. A teacher’s private notes, if they have been kept private and used as a memory aid, are not education records, and therefore the student or parent has no right to see those notes. The common practice of “peer grading” does not violate FERPA.

If records are created by a law enforcement unit (e.g., campus police) for a law enforcement purpose and maintained by the unit, the student has no right to access them under FERPA. But if the law enforcement unit gives a copy of the report to a school administrator, say for use in a school discipline proceeding, the record is no longer exempt. And school administrators can’t hide their discipline records by giving them to campus police or by asking the police to do all the investigation that will lead to an expulsion. Educational records don’t lose their status as educational records while in the possession of the law enforcement unit. Similarly, records created by the law enforcement unit exclusively for a non-law-enforcement purpose, such as a disciplinary action conducted by the school, are not covered by the law enforcement exception.

If you need the records to defend against an expulsion or for another legal proceeding, of course, access is not enough. You need a copy. Don’t rely on the few papers your client gives you—there may be many other documents in the school’s file that the parent never saw. Look at the complete records yourself or get a complete copy. FERPA does not require schools to provide copies unless denial of copies effectively prevents a student’s right to inspect and review. Some schools will provide copies as a policy, even though they are not required to do so by FERPA. There may be state laws that entitle you to copies. IDEA requires that evaluations be provided to parents, along with copies of individual education plans (IEPs—written statements for each child with a disability, developed in accordance with federal law).

Parents have a right to a hearing if they claim that the information in their child’s educational records is inaccurate, misleading, or otherwise in violation of the privacy rights of the student. The parent also has the right to insert a written explanation into the record regarding the content of the record.

How Confidential Are the Records?

Unless an exception applies, the school may not release educational records, other than directory information, without the parent’s consent. Records are either directory information or non-directory information. Directory information includes name, address, phone number, dates of attendance, degrees awarded, enrollment status, and major field of study. Directory information may be disclosed without the written consent of the student, but the student can submit a written request to the school to limit disclosure. Laws other than FERPA may authorize disclosure of personally identifiable information from students’ education records. NCLB provides that schools are required to provide directory information to military recruiters who request it. Parents have the right to opt out of this disclosure.

Non-directory information includes all other educational records. There is a right to confidentiality in these records. Unless an exception applies, these records cannot be shown or released to anyone without the prior written consent of the parent or eligible student. Even faculty and other school employees can’t always have access to these records—they must have a legitimate need to see them. An access log must record who looked at the file, although the access log need not list parents, school officials with a legitimate educational interest, people who have written consent, people seeking directory information, and parties seeking the records with a subpoena when the court or issuing agency has ordered that the existence or the contents of the subpoena not be disclosed.

What if the parent has not provided written consent to disclosure of non-directory information? Don’t assume that the records are confidential. There are more than a dozen exceptions to the general rule of confidentiality. The trend in recent years has been to permit certain disclosures even without consent. Some of the most important exceptions are for

• school officials whom the school has determined to have a legitimate educational interest;

• schools in which the student seeks or intends to enroll;

• the attorney general of the United States;

• a judicial order or subpoena, or cases involving litigation with the parent;

• a health or safety emergency;

• disclosure of the final results of a disciplinary proceeding at a post-secondary institution to the victim of a crime of violence or sex offense;

• disclosure of the final results of a disciplinary proceeding at a post-secondary institution if the alleged perpetrator is a student and has violated the school’s rules (but the name of the victim or other students cannot be disclosed without their consent); and

• disclosure to the parent of a student under 21 years old who committed a disciplinary violation regarding alcohol or a controlled substance at a post-secondary institution.

Under FERPA, a school is permitted to transfer all education records, including disciplinary records, of a student who is transferring to another school. NCLB changes this. NCLB, 20 U.S.C. §7165, requires that states have a procedure to transfer disciplinary records, with respect to a suspension or expulsion, by schools to any other elementary school or secondary school for any student who is enrolled or seeks to enroll in that school.

Remedies for Unauthorized Disclosures

FERPA is enforced by the Family Policy Compliance Office (FPCO), which is part of the U.S. Department of Education. Although there is authority allowing federal funds to be cut off if there is a violation, don’t count on this if you have a complaint. The FPCO will respond to individual complaints with an investigation. There is no right to a personal hearing. Instead, FPCO will respond to a complaint by an individual student by soliciting the written response of the school. The FPCO also provides technical assistance to schools. Ultimately, the FPCO will make a determination as to whether the school has violated FERPA. Do not expect quick results. It will take many months for this investigation. A decision might be well over a year away.

At one time, you might have considered filing a lawsuit against the school if you were not satisfied with the slow response to your complaint of a FERPA violation. But no more. The courts have shot down that approach.

In Gonzaga University v. Doe a student brought a suit against the university for disclosing personally identifiable information, without his consent, in violation of FERPA. The Supreme Court ruled in 2002 that students may not sue for damages under 42 U.S.C. §1983 to enforce provisions of FERPA. Although you may not have a private right of action under FERPA, you still may have a claim under state tort law for invasion of privacy. You also can sue for injunctive relief under FERPA to stop a school from releasing educational records.

A Practical Tip

FERPA provides parents with a valuable right of access to their child’s records. Whenever parents have a dispute with a school—whether involving a discipline matter, academic misconduct, or special education dispute—the first step is to view the child’s school records. Whenever a dispute arises, counsel for the parents should make a written request for access to and/or a complete copy of the child’s educational records, and also request a copy of the school’s FERPA policy.

The flip side of FERPA is that, even though we have a federal statute protecting privacy in school records, don’t assume that a child’s educational records are truly private. There are lots of exceptions built into the law.

Campus Criminals

Parents and college students are justifiably concerned with campus crime. The Crime Awareness and Campus Security Act of 1990 requires that colleges publish and distribute an annual security report that includes campus crime statistics. Some states have their own version of a crime statistics law. Students who want more information may turn to state freedom of information laws seeking information about public schools. College officials may be reluctant to share the details of crimes committed on campus, often asserting that FERPA requires them to protect the privacy interests of the students involved.

Because of a 1992 amendment to FERPA, campus law enforcement records are not education records and are exempt from FERPA protection. They may or may not be available to the public, depending upon your state’s open records laws.

Victims may be informed of the final results of a disciplinary proceeding against an alleged perpetrator regardless of the outcome of that proceeding. A college may disclose, to the public, the final results of disciplinary proceedings in which a student is found to be in violation of school rules for committing a crime of violence or a nonforcible sex offense. The school cannot disclose the name of any other student, including a victim or witness, without the prior written consent of the other student. The regulations do not require this disclosure. Disclosure is permissive. Schools are free to make their own policies regarding disclosure. Counsel should also look to state law regarding other statutory disclosure provisions. Schools may disclose information concerning sex offenders that they receive under state sex offender registration and community notification programs.

 

Anti-Terrorism Activities
When Congress passed the Patriot Act in response to the September 11 terrorist attacks, it amended FERPA, allowing broad, non-consensual disclosure of educational records. The attorney general may submit a written application to a court for an ex parte order requiring an educational agency to permit the attorney general to collect educational records that are relevant to an authorized investigation or prosecution of terrorism crimes. The Patriot Act also amends FERPA’s record keeping requirements—the school does not have to keep a record of that disclosure. An educational institution that, in good faith, produces information from education records in compliance with an ex parte order issued under the amendment shall not be liable to any person for that production.

 

Winona W. Zimberlin practices law in Hartford, Connecticut, representing students, and is chair of the Education Law Committee of the Connecticut Bar Association. She can be reached at wzimberl@netscape.com.

 

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