Since student records often contain confidential information such as grades, disciplinary history, and medical history, it is important for parents to understand what procedures school districts must follow when disclosing educational records either with or without parental consent. This section will provide parents with an overview of the Family Educational Rights and Privacy Act (FERPA), the primary federal legislation guiding schools in the disclosure of student educational records.
The first part of this section will touch upon the rights of parents to access their own child’s educational records, including restrictions on this right, and the right of parents and students to amend their educational records. Beyond outlining the respective rights of parents and students to access their records, FERPA also touches upon the confidentiality to be afforded these educational records. While schools cannot generally disclose information within the student educational records without parental or student consent, parents should be aware that there are several exceptions to this rule, which we will also discuss. We will then conclude with a discussion on the general obligations of the school or district to notify parents and students about their rights under FERPA.
What materials are considered “educational records?
The U.S. Congress has defined “educational records” as records, files, documents, or any other materials that (1) contain information related to the student; and (2) are maintained by an educational institution or by a person acting on behalf of such an institution. While the definition is broad, the legislation also spells out what material is excluded from the definition. Under the Act, a record that teachers or other school employees maintain in their sole possession is not considered an educational record. In addition, records of law enforcement authorities in the school, records of a student who is eighteen years or older that are maintained by a physician, psychiatrist, psychologist, or records in connection with the treatment of a student, do not fall under the definition.
What are the rights of parents and students to access educational records?
Under FERPA, parents and students have the right to access their educational records, subject to a few limitations. Parents may exercise these rights while the student is a child, and the right extends to the student once he or she turns eighteen. Nevertheless, at this stage, parents still have the right to access the records without consent from the student provided the student is listed as a dependent on a parent’s federal income tax return.
Under the statute, each school must develop appropriate procedures for granting requests by parents for educational records within a reasonable timeframe, not to exceed forty-five days. In addition, the U.S. Department of Education calls for schools to respond to reasonable requests for explanations or interpretations of the records also within a reasonable time. If circumstances prevent parents or eligible students from exercising their right to access the records, the school must either provide the parent or student with copies of the requested documents or make alternative arrangements for them to review the education records. Finally, the regulations prohibit the school from destroying records if there is an outstanding request for them.
There are, however, two important limitations to this right of review. First, if information about another student is on the educational record, the parent can review only the portion of the record pertaining to his or her child. Second, while non-custodial parents generally can review their child’s records without consent from the student or other parent, a school must deny such a request if there is a court order, state statute, or legally binding document explicitly revoking the right.
How do parents and students request to amend students’ educational records?
If a parent believes that his or her child’s educational records are inaccurate, misleading, or in violation of students’ rights to privacy, the parent may request that the school amend the record. The school must decide whether to move forward with this request within a reasonable time. If it opts not to carry out the request, then it has to inform the parent or eligible student of its decision and his or her right to an informal hearing to contest the decision.
The DOE has set forth minimum requirements for the conduct of such a hearing. The school must hold the hearing within a reasonable time after the request and notify the parent or student of the date, time, and place, reasonably in advance of the proceeding. While an individual from an educational agency or institution may preside over the hearing, he or she must not have a direct interest in the outcome of the case. In terms of the hearing itself, DOE simply requires that the contesting party must have a full and fair opportunity to present evidence relevant to the issue at hand. The regulations provide that parents or eligible students have the right to be represented by an individual at his or her expense, including an attorney. As with other administrative proceedings, the hearing officer can only consider evidence that was presented during the hearing.
If the hearing officer decides in favor of the parent or eligible student, the school must amend the record accordingly, and inform the requesting party of this decision. On the other hand, if the hearing officer decides that the educational record is not inaccurate or misleading, parents have the right to put forth a statement in the record commenting on the contested information and why he or she disagrees with the decision of the school. The school has to keep the statement in the record as long as the record is maintained and must disclose the statement whenever it discloses the record to which the statement refers to.
When can a school disclose information regarding your child’s educational records?
Generally, schools cannot disclose to a third party information about the student from the educational records without signed and written consent from the parent or the eligible student. The signed and dated written consent may include a signature in electronic form provided it identifies the person giving the electronic consent and indicates his or her approval of the information contained within the consent. The written consent must specify which records are to be disclosed, state the reason for the disclosure, and identify the individual or organization to which the disclosure is being made. The school is obligated upon request to provide parents or eligible students with copies of the records that are to be disclosed.
When can a school disclose information without parental or student consent?
While FERPA provides extensive confidentiality protections for parents and students with respect to their educational records, there are several exceptions permitting the school to disclose the records without prior consent. For example, the school can disclose information to school officials having a legitimate educational interest in reviewing the record. School officials having such an educational interest include teachers and school employees that work directly with the student as well as attorneys for the school district. The right to disclosure may also extend to outside consultants, contractors, volunteers, and other parties that have contracted with the school provided they (1) perform a service for which the school would otherwise use employees; (2) are under the direct control of the school in the use and review of the records; and (3) will not disclose the information to an unauthorized party. Regardless of the source of the request, the school must take appropriate measures to ensure that these parties review only those records in which they have a legitimate educational interest.
The school does not need consent when it is disclosing information to state and local officials who are using the records to conduct audits, evaluations, and compliance reviews of specific educational programs. The school can also disclose to organizations that are contracting with the school to develop and administer predictive tests, administer aid programs and improve classroom instruction. Under the statute, the term “organizations” includes federal, state and local agencies, and independent organizations.
Congress has nevertheless imposed some restrictions to ensure these organizations are properly using the record. First, the written agreement between the school and the organization must specify the purpose, scope and duration of the studies, the information that is to be disclosed and contain assurances from the organization that it uses the records only for its intended purpose. Second, when conducting the studies, only representatives of the organization that have a legitimate interest in the information can access the records. Finally, once the organization completes the study, it has to destroy or return to the school all personally identifiable information. To ensure that schools comply with these requirements, the U.S. Department of Education has the authority to prohibit an institution from disclosing information to a third-party organization for five years if it makes a determination that the school violated the provisions outlined above.
If a student is intending to enroll or transfer to another school in a different district, the “receiving school” may access the educational records from the “sending school” without parental or student consent unless there is a board policy prohibiting the transfer of records. However, under Connecticut law, the receiving school must send written notification to the sending school at the time the student enrolls there. The sending school then has ten days after the written notification to send all the student’s educational records to the receiving school. If the sending school does disclose confidential information under these circumstances, it must make a reasonable attempt to notify the parent or the student at his or her last known address. However, schools do not have to carry out this notification task if (1) the parent or student initiated the disclosure, or (2) the school specifies a policy in its annual notification of forwarding a student’s records to the receiving school when that student enrolls there. In any event, the school has to provide copies of the disclosed records to the parent or student and an opportunity for a hearing if he or she wants to amend the records.
School officials may disclose information pursuant to a court order or subpoena. In doing so, the school has to make reasonable attempts to notify the parent or student about the order or subpoena in advance of the disclosure, so the parent or student has an opportunity to challenge the subpoena or court order. On a related note, if the school is defending or pursuing a legal action by or against a parent, it can disclose relevant student records without a court order, subpoena or prior parental or student consent.
Similarly, the school can disclose student information to state and local authorities without written consent if the disclosure is related to the juvenile justice system’s ability to serve that student and a particular state statute permits such an action. If the pertinent state statute was adopted after November 19, 1974, the authorities who are requesting the student records must certify in writing to the school that they will not disclose the information to any party that is not authorized by state law.
The school can also disclose confidential information in emergencies if the information is necessary to protect the health and safety of the student or other individuals. Parents should be aware that the school has the statutory authority to disclose confidential student records to teachers and school officials within the school and at other schools if they have a legitimate interest in the behavior of the student. The statute also permits the school to disclose information to any other individual whose knowledge of the information is necessary to protect the student and any other individuals.
Finally, the school can disclose “directory information” without consent if it has provided public notice to parents or eligible students attending the school. “Directory information” means any information in an educational record of the student that would not generally be harmful or an invasion of privacy if disclosed. Examples of directory information include the student’s name, address, phone listing, e-mail address, photograph, date and place of birth, major field of study, grade level, enrollment status, dates of attendance, participation in activities and sports, degrees, honors and awards received, etc. DOE has outlined requirements for what type of information must be in the public notice. First, the notice has to contain the types of personally identifiable information that the school has designated as directory information. Second, the school has to spell out the parent’s or the eligible student’s right to refuse to let the school disclose such information and the period of time within which he or she has to notify the school.
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