April 01, 2013

The Uninterrupted Scholars Act: What Advocates Should Know

Legal Center for Foster Care and Education

The views expressed herein have not been approved by the House of Delegates or the Board of Governors of the American Bar Association, and accordingly, should not be construed as representing the policy of the American Bar Association.

Delays surrounding access to school records for children and youth in foster care prevent courts and child welfare agencies from making prompt education-related decisions. A new law aims to address one source of delay: parental consent.

The Uninterrupted Scholars Act (USA), P.L. No: 112-278, passed Congress with bipartisan support and was signed into law on January 14, 2013. The law makes two key changes to the Family Education Rights and Privacy Act (FERPA), which protects the privacy of students’ education records:

  • Creates a new exception under FERPA that makes it easier for schools to release a child’s education records to child welfare agencies without prior written consent of the parents. (This does not mean that child welfare agencies should leave out parents. Good practice dictates that child welfare agencies should keep parents informed and involved at all times.) 

  • Eliminates the requirement that education agencies notify parents before education records are released pursuant to a court order to any individual, when the parent is a party to the case where that order was issued. 

Promoting quick access to school records

Previously, child welfare agency representatives faced delays getting critical education records. Children and youth in foster care are among the most educationally at-risk of all student groups. Child welfare law requires that child welfare agencies maintain education records as part of the child’s case plan. The Fostering Connections to Success and Increasing Adoptions Act of 2008 now also requires agencies to make sure children are enrolled in school, their school placements are stable, and that children who change schools are promptly enrolled with all school records. To meet these requirements – and ensure informed and timely judicial decisions – child welfare agencies need quick access to the child’s education record.

Releasing records under the new exception

The new amendment permits schools to release education records to “an agency caseworker or other representative of a State or local child welfare agency, or tribal organization.” The recipient must have the right to access a student’s case plan and be “legally responsible” for the child’s “care and protection.” This includes all children placed in out-of-home care by the agency, but states may vary as to which other students fall into this category. Remember, even for children not in this category, the child welfare agency may be able to get records through other means.[1]

Maintaining confidentiality of education records

 The new exception facilitates information sharing with child welfare agencies while still protecting the confidentiality of students’ records. Child welfare agencies can only redisclose education records obtained through this exception to “an individual or entity engaged in addressing the student’s education needs.” The recipient must be authorized by the child welfare agency to receive the records, and disclosure must be consistent with other state confidentiality laws. The child welfare agency may also share the records with any individual who meets another FERPA exception.[2]

Releasing records under FERPA’s “court order” exception

An important exception to FERPA’s parental consent requirement is when education records are shared with a third party to comply with a judicial order or subpoena. A school can release education records to any party listed on a court order, such as the child welfare agency or caseworker, caretaker, children’s attorney, or court appointed special advocate. Under the new law, schools do not need to provide notice to parents before releasing records pursuant to the court order exception when the parents are parties to the child welfare case and are already on notice that the school records will be shared.  

The Legal Center for Foster Care and Education, a project of the ABA Center on Children and the Law, works to improve education outcomes for children in foster care. www.fostercareandeducation.org.

For more information:

For training and technical assistance requests about legal issues surrounding access to education records of children in foster care, email the Legal Center.

This article was adapted from “The Uninterrupted Scholars Act: How Do Recent Changes to FERPA Help Child Welfare Agencies Get Access to School Records?” by the Legal Center for Foster Care and Education.

Endnotes

[1] See Q & A: How Can Child Welfare Agencies Access Education Records in Compliance with FERPA for more information: http://www.fostercareandeducation.org/Database.aspx?EntryId=1601&Command=Core_Download&method=inline

[2] See Q & A: How Can Child Welfare Agencies Access Education Records in Compliance with FERPA: http://www.fostercareandeducation.org/Database.aspx?EntryId=1601&Command=Core_Download&method=inline.