The basic principles of the Family Education Rights and Privacy Act of 1974 (FERPA) were covered in a previous blog post from September 2014 (see https://udallshumway.com/blog/family-educational-rights-and-privacy-act-ferpa-101/). However, this blog will focus on the exceptions contained in FERPA regarding the disclosure of student information without the prior written consent of the student’s parents.
Just to review: 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, and accomplishes this goal by mandating the following five (5) basic objectives:
- Parents have the right to access and review the education records of their children;
- 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;
- School officials are generally prohibited from disclosing education records or other personally identifiable information to others, without having first obtained the prior written consent of the parents or eligible student;
- Parents 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; and
- School officials are obligated to inform parents and eligible students of their rights under FERPA and the procedures for exercising those rights.
One of the key requirements of FERPA is that education records and the information contained in those records should not be disclosed to anyone without having first obtained prior written consent from the student’s parent. However, FERPA recognizes there are situations in which it is not reasonable or practical to require a school employee to obtain a parent’s prior written consent. Therefore, FERPA allows records and information to be released without prior consent under the following enumerated circumstances:
The information is considered Directory information: Directory information is information that would generally not be considered harmful if disclosed and includes, but is not limited to, the student’s name, address, telephone listing, electronic mail address, etc. Before this exception can be utilized under FERPA, schools must inform parents what information they have designated as “directory information”, and must provide parents the option of excluding their child’s information from directory information.
Teachers or other district officials: Education records and personally identifiable information can be released to other school officials, including teachers, with a legitimate educational interest in the information. Contractors, volunteers, consultants, or other parties may also be considered a school official if they perform an institutional service or function that the school would otherwise use employees for, and the individuals are under the direct control of the school with respect to use and maintenance of education records.
If there is no legitimate need for the information, then the records remain confidential, and parent consent is required before the information can be disclosed. For example, it would be appropriate for two teachers to access a student’s discipline records in order to come up with some consistent behavioral interventions. In comparison, it would not be appropriate for the teachers to review the student’s records for the purposes of gossip.
Officials of another school system where the student seeks or intends to enroll: Prior consent is not necessary before transferring education records to another school, or discussing information about the student, etc., so long as the disclosure is for purposes related to the student’s enrollment or transfer.
While FERPA permits the disclosure of records to any subsequent school, Arizona law mandates that a student’s previous school transfer a copy of school records within five (5) days of the student being enrolled at the new school. The records should include any standardized test scores and special education documents, if applicable. Further, the No Child Left Behind Act of 2001 (NCLB) mandates that a student’s previous school transfer any disciplinary records with respect to suspensions or expulsions to any subsequent private or public elementary or secondary school where the student enrolls or seeks, intends, or is instructed to enroll.
State juvenile justice systems or their officials: Prior consent is not necessary before sharing a student’s records with juvenile justice personnel. In Arizona, the educational records shall include the juvenile’s cumulative file and discipline file and, if applicable, records that are compiled pursuant to the Individuals with Disabilities Education Act and Section 504 of the Rehabilitation Act of 1973.
The officials and authorities to whom the records are disclosed shall certify in writing to the school that the information will not be disclosed to any other party, except as provided under State law, without the prior written consent of the parent of the student.
State and federal educational authorities: Prior consent is not necessary before sharing a student’s records with, for example, personnel from the Arizona Department of Education or the U.S. Dept. of Education Office for Civil Rights.
In Compliance with a judicial order or a lawfully issued Subpoena: Parent consent is not necessary to disclose records pursuant to a lawfully issued subpoena. However, districts are obligated to notify parents of their receipt of the subpoena or order prior to the release of any student information, unless the subpoena states otherwise. If the parents wish to object to the release of their child’s information, they may make a motion to the court or other issuing agency to quash or modify the subpoena.
In connection with the receipt or application of financial aid: Parent consent is not required if the information is necessary to determine eligibility, the amount, or conditions for the aid, or to enforce the terms and conditions of the aid.
Organizations (federal, state, local, or independent) conducting educational studies: Parent consent is not required if the information is disclosed to agencies or institutions who will use the information in order to develop, validate, or administer predictive tests, administer student aid programs, or to improve instruction.
Accrediting organizations: Records can be released without parent consent if the release is necessary to carry out the functions of accrediting agencies.
Health and safety emergency: School officials may disclose personally identifiable information to appropriate parties in connection with an emergency, if knowledge of the information is necessary to protect the health or safety of the students or other individuals. This exception is to be strictly construed, and school officials must assess the circumstances carefully to determine whether it is appropriate to utilize this “emergency” exception.
Absent an exception set forth in FERPA, prior written consent of a parent, guardian or eligible student is required before disclosing education records or personally identifiable information to any third party. Additionally, FERPA contains many important requirements for each exception as to when a school can release records without consent. Therefore, readers should refer to the specific requirements under FERPA before proceeding under one of the exceptions. FERPA regulations may be accessed at: http://www.ecfr.gov/cgi-bin/text-idx?c=ecfr&sid=11975031b82001bed902b3e73f33e604&rgn=div5&view=text&node=34:18.104.22.168.33&idno=34#se34.1.99_131
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 Education Law Attorney, Kimberly R. Davis at 480.461.5387, log on to udallshumway.com, or contact an attorney in your area.