Presented by: Sherman R. Garnett Coordinator, Child Welfare and Attendance San Bernardino County Superintendent of Schools

Are you current and well versed in the area of student records? Is it permissive to place the IEP of a current or former special education student in the student cum file or deny a separated, never married, or divorced parent the right in accessing student records? This interactive session will delve in this issue and many other records issues that site and district level administrators face daily. Participants will be quizzed/challenged regarding their current practices to ensure compliance with the Family Education Rights Privacy Act (FERPA). Additionally, sample policies and procedures will be discussed and recommended to participants to ensure that the rights of all students and parents are being adhered.

Ok, can you answer the questions below without hesitation? They are either totally true or totally false. If the answer is false, please provide an explanation. Good Luck. 1. Any current public school student who has completed Grade 10 may access their records regardless of their age without parent permission. 2. A teacher’s grade book is considered an education record. 3. A public school does not have to forward records to another public school in which the student is enrolled unless the student has formally disenrolled from that school. 4. A parent request for a copy of an IEP can be withheld by a school district if the parent or student owes fees for books, etc. 5. A parent/guardian must be granted access to all student records upon their written or oral request within forty five business days. 6. Charter Schools may create protocols/procedures that are more stringent than a public school records request protocol/procedures. 7. A parent/guardian must produce a copy of a birth certificate in order to enroll their kindergarten or first grade child in a public school or charter school. 8. All teachers at the school site are entitled to access records to any student enrolled at the school during business hours. 9. Non custodial parents are not entitled to student records unless permission is granted via a court order. 10. Special Education records such as IEPs, authorizations, etc., are never to be kept in a student’s cumulative file. They are not be placed in a separate confidential file away from the school site.

 How the agency or institution informs parents and students of their right.  How parents or eligible student may inspect and review education records.  The procedure the parent or eligible student must follow to inspect and review the records.  A description of the circumstances to deny a request for a copy of records.  A schedule of fees (if any) to be charged for copies.  A list of the type and location of education record maintained by the agency or institution, and the titles and addresses of the officials responsible for the records.

 A statement that personally identifiable information will not be released from an education record without the prior written consent of the parent or eligible student.  A statement indicating whether the educational agency or institution has a policy of disclosing personally identifiable information, a specification of the criteria for determining which parties are school officials, and what agency or institution considers to be legitimate educational interest.  A statement that a record of disclosures will be maintained and that a parent or eligible student may inspect and review that record.  A specification of the types of personally identifiable information the agency or institution has designated as directory information.  A statement that the agency or institution permits a parent or eligible student to request correction of the student’s education records, to obtain a hearing and to add a statement to the record.

Records A “record” is defined by the FERPA regulations as “any information recorded in any way, including, but not limited to, handwriting, print, computer media, video or audio tape, film, microfilm and microfiche.” What is an education record? In order for a document to receive protection under FERPA, it must be considered an “education record.” An education record consists of those “records” that are: (1) “directly related to the student”; and (2) “maintained” by an “educational agency or institution” or by a “party acting for the agency or institution.” Directly related to the student According to 34 CF 99.3, “personally identifiable information” is information about a student that includes, but is not limited to:  The student’s name;  The name of the student’s parents or other family member;  The address of the student’s family;  A personal identifier, such as the student’s Social Security number or student’s number;  A list of personal characteristics that would make the student’s identity easily traceable;  Other “indirect identifiers.” such as the student’s date of birth, place of birth, and mother’s maiden name;

 FERPA applies when funds have been made available under any program administered by the Secretary of Education to an educational institution that provides educational services, instruction or both, to student, or is authorized to direct and control public elementary or secondary, or postsecondary educational institutions.

FERPA grant parents (or eligible students) four specific rights:  The right to inspect and review the education records relating to the student maintained by the schools he or she has attended.  The right to challenge and require the school to amend any portion of the education records concerning the student that might be inaccurate, misleading or otherwise in violation of the student’s privacy rights.  The right to require the school to obtain written consent prior to the disclosure of personally identifiable information, expected in those instances specifically noted in the statute and regulations.  The right to receive notice of the rights afforded them by FERPA.

 FERPA regulations at 34 CFR provide that schools must give a parent or eligible student the opportunity to inspect and review the student’s education records. This provision applies to any educational agency or institution, and state educational agency and its components. The district must comply with the request to access records “within a reasonable period of time, but not more than 45 days after it has received that request.” (34 CFR (b).)

 To teachers or other district officials who have a legitimate educational interest. 34 CFR 99.1 (a) (1).  To officials of another school system or school where the student seeks to enroll or has enrolled. 34 CFR 99.1 (a) (2).  To authorized representatives of the Comptroller General of the United States, the Secretary of the Department of Education, or state and local educational authorities. 34 CFR 99.1 (a) (3).  In connection with the application for or receipt of financial aid. 34 CFR 99.1 (a) (4).  To state and local juvenile justice system or their officials. 34 CFR 99.1 (a) (5).

 To organizations conducting educational studies. 34 CFR 99.1 (a) (6).  To accrediting organizations. 34 CFR 99.1 (a) (7).  To parents of an eligible student who is considered a dependent student under the Internal Revenue Code. 34 CFR 99.1 (a) (8).  In compliance with judicial order or lawfully issue subpoena. 34 CFR 99.1 (a) (9).  In connection with a heath or safety emergency. 34 CFR 99.1 (a) (10).  If designated as directory information. 34 CFR 99.1 (a) (11).  To the parents (of non-eligible student) or to an eligible student. 34 CFR 99.1 (a) (12).

FERPA spells out 15 separate conditions under which prior parental consent is not required to disclose information to third parties: 1. To teachers or other districts officials that have a legitimate educational interest.34 CFR 99.31(a) (1). 2. To officials of another school system or school where the student seeks to enroll. 34 CFR 99.31(a) (2). 3. To authorized representatives of the Comptroller General of the United States, the Secretary of the Department of Education, or state and local educational authorities. 34 CFR 99.31(a) (3). 4. In connection with the application for receipt of financial aid. 34 CFR 99.31(a) (4). 5. To state and local juvenile justice systems or their officials. 34 CFR 99.31(a) (5). 6. To organizations conducting educational studies. 34 CFR 99.31(a) (6). 7. To accrediting organizations. 34 CFR 99.31(a) (7). 8. To parents of an eligible student who is considered a dependent student under the Internal Revenue Code. 34 CFR 99.31(a) (8).

9. In compliance with a judicial order or lawfully issued subpoena. 34 CFR 99.31(a) (9). 10. In connection with a heath or safety emergency. 34 CFR 99.31(a) (10). 11. If designated as directory information. 34 CFR 99.31(a) (11). 12. To the parents (of a non-eligible student) or to an eligible student. 34 CFR 99.31(a) (12). 13. To an alleged victim of a crime of violence, disciplinary records maintained by postsecondary institutions concerning the alleged crime. 34 CFR 99.31(a) (13). 14. In connection with a disciplinary proceeding at an institution of post secondary education. 34 CFR 99.31(a) (14). 15. To the parent of a student at an institution of postsecondary education regarding the student’s violation of any Federal, State, or local law, or of any rile or policy of the institution, governing to use or possession of alcohol or a controlled substance. 34 CFR 99.31(a) (15).

 FERPA allows parents who believe that their child’s education records contain information that is “inaccurate, misleading, or in violation of the student’s right of privacy” to ask the educational agency or institution to amend the record, (34 CFR (a).) The agency then must decide whether to amend the record as requested within “a reasonable time” after it receives the request, (34 CFR (b).) If the agency decides not to amend the record as requested, it must inform the parent or eligible student of its decision and of his of her right to a hearing on the matter, 34 CFR (c). The right to a hearing is established under 34 CFR Further regulation at 34 CFR set out certain minimum requirements for the conduct of such hearing.

 The regulation at 34 CFR 99.31(a) (2) allow a school to disclose information from a student’s education record to another school (including a postsecondary institution) where the student seeks or intends to enroll. Of course, test scores are commonly disclosed using the exception. The disclosure is contingent on three conditions, described in 34 CFR 99.31(a), with which the school must comply: 1. The school must make a reasonable attempt to notify the parents (or eligible student) that it is making such disclosure, unless the disclosure is initiated by the parent (or eligible student), or if the schools annual required FERPA notice includes a provision that it forwards education records to other agencies or institutions that have requested the records in which the student seeks or intends to enroll. 34 CFR 99.31(a) (1). 2. The School must provide the parent with a copy of the record that was disclosed, if they request it 34 CFR 99.31(a) (2). 3. The school must conduct a hearing to consider a parental request to amend the disclosed record, should they make such request. 34 CFR 99.31(a) (3).

 The exception is most frequently used in connection with students who are applying to college. More commonly, the parent themselves have requested the disclosure, obviating the need for notice or disclosure in the student’s records policy. Similarly, colleges may obtain the consent of parents to the release of high school records as part of the application process. In the point of fact, transmission of transcripts by high schools is, of necessity, consensual as between the parents and the high school, for colleges demand production of records directly from the school as a condition of admission.

 FERPA generally does not require schools to transfer records.  IDEA required that, the new district where the student enrolls has to take reasonable steps to promptly obtain the student’s records, including the IEP, any other records concerning the provision of special education or related services from the previous district where the student was enrolled.  Disciplinary records, which are considered education records under FERPA, the No Child Left Behind Act of 2001 at 20 USC 7165 requires state with assurances a procedure in place to “facilitate the transfer of disciplinary records, with respect to a suspension or expulsion, by local educational agencies to any public or private elementary school or secondary school for any student who is enrolled or seeks, intends or is instructed to enroll, on a full- or part-time basis in the school.”

1. Creation of Documents 2. Age Requirements/ Non Custodial Parents/ 18 year olds/ Step Parents 3. Grades/ Credits/ Transcripts/ IDEA/504/ Charging of Fees 4. Removal/ Challenging of Records 5. Use of Non- Attorney Advocates in Complaint Representation Process 6. Teacher and Administrator Personal Notes 7. Records to Law Enforcement 8. Primary Language 9. Treatment Records/ Immunization Records 10. Maintenance of Records/ Destruction of Records/ State Regulations 11. On- Going Standing Requests 12. Withholding Records 13. NCLB Required Issues/ Transfer of Records 14. Required Annual Notification/ HOW???? 15. Directory Information/ Military 16. Private Schools/ Charter Schools 17. Test Protocols 18. Discipline Records 19. Birth Certificates 20. Custodial Court Orders