This article is a general overview discussing the requirements of the Family Educational Rights and Privacy Act (FERPA). FERPA is the main piece of legislation that governs the management of student records and applies to any educational agency that receives any type of direct or indirect funding from the U.S. Department of Education, including charter schools.
FERPA was enacted to protect the privacy interests of students with respect to their records. School Districts and Charter Schools are required to provide annual notice of the following to all students and parents in attendance:
- Parents have the right to access and review the education records of their children. Adult students, otherwise known as “eligible students,” also have the right to inspect and review their own records;
- Parents have the right to challenge and request amendments of any education record that they feel is inaccurate, misleading, or in violation of their child’s privacy rights. Eligible students also have the right to request amendments of their records;
- School officials are generally prohibited from disclosing education records or other personally identifiable information with others, without having first obtained the prior written consent of the parents or eligible student;
- Parents and eligible students have the right to file a complaint with the Family Compliance Office of the U.S. Department of Education if they feel their FERPA rights have been violated;
- Inform parents and eligible students if the school intends to disclose directory information and allow parents and eligible students the right to opt-out of disclosure of their directory information.
FERPA specifically pertains to “education records.” A student’s education record includes more than the just the content of a cumulative file, per se. FERPA regulations broadly define a “record” as “information recorded in any way, including but not limited to, handwriting, print, computer, media, video or audio tape, film, microfilm and microfiche.” The term “educational record” is defined as “those records, files, documents, and other materials which . . . contain information directly related to a student . . . and are maintained by an educational agency or institution or by a person acting for such agency or institution.” Therefore, a student’s education records can be anything from discipline files to nurse’s files, audio recordings of an IEP meeting, e-mails about a student, or hand-written notes about a student, etc.
FERPA specifically exempts the following types of records from being classified as “education records:”
- Sole possession records that are personal notes and memory aides written by a teacher or counselor about a student that remain in the author’s sole possession and have not been shared with others. If the notes are shared with another person, they become “education records” subject to the requirements of FERPA;
- Law enforcement records that are records created and maintained by a law enforcement unit of the school for a law enforcement purpose;
- Employment records that are maintained in the normal course of business and relate exclusively to such person in his or her capacity as an employee;
- Medical records are not “education records” if the student is over 18 years old and not on an IEP (Individualized Education Plan) or is attending an institution of postsecondary education. Note that records maintained by the K-12 school nurse (immunization records, student visits, student medications) and services related to an IEP or a Section 504 Plan are still considered “education records” under FERPA;
- Alumni records, e.g., alumni directory or newsletter.
In addition to education records, schools must also be cautious to avoid the release of a student’s personally identifiable information to others. “Personally identifiable information” is information that is contained in the education records that directly relates to the student, for example, grades, testing scores, pictures, address, phone number, social security number, student identification number, etc. Personally identifiable information does not have to necessarily be embarrassing or private in order to be protected under FERPA. A straight “A” report card is just as just as protected as a straight “F” report card. An impermissible disclosure could be as simple as talking about another student’s personally identifiable information.
FERPA recognizes that it is not reasonable or practical to require a school employee to obtain prior parent consent every time records or personally identifiable information needs to be given to another person. FERPA does allow records and information to be released without prior consent under specific circumstances. FERPA provides several specific exceptions to the prior consent rule, for example, in health and safety emergencies; for directory information in some circumstances; in response to a subpoena; or to other school officials with a legitimate need to know the information. For a full list of the exemptions contained in FERPA (34 C.F.R. § 99.31), please click the following link:
This blog should be used for informational purposes only. It does not create an attorney-client relationship with any reader and should not be construed as legal advice. If you need legal advice, please feel free to contact 480.461.5300, log on to udallshumway.com, or contact an attorney in your area.