TO: Parents of Students in Grades PK-12
FROM: Dr. Stan Winborne, Superintendent
SUBJECT: Family Educational Rights and Privacy Act (FERPA) Annual Notice
FERPA is a Federal law that is administered by the Family Policy Compliance Office (Office) in the U.S. Department of Education (Department). 20 U.S.C. § 1232g; 34 CFR Part 99. FERPA applies to educational agencies and institutions (e.g., schools) that receive funding under any program administered by the Department. Private and parochial schools at the elementary and secondary levels generally do not receive such funding and are, therefore, not subject to FERPA.
FERPA gives custodial and noncustodial parents alike certain rights with respect to their children's education records, unless a school is provided with evidence that there is a court order or State law that specifically provides to the contrary. Otherwise, both custodial and noncustodial parents have the right to access their children's education records, the right to seek to have the records amended, the right to consent to disclosure of personally identifiable information from the records (except in certain circumstances specified in the FERPA regulations, some of which are discussed below), and the right to file a complaint with the NC Department of Public Instruction.
When a student reaches 18 years of age or attends a postsecondary institution, he or she becomes an "eligible student," and all rights under FERPA transfer from the parent to the student. The term "education records" is defined as those records that contain information directly related to a student and which are maintained by an educational agency or institution or by a party acting for the agency or institution.
FERPA generally prohibits the improper disclosure of personally identifiable information derived from education records. Thus, information that an official obtained through personal knowledge or observation, or has heard orally from others, is not protected under FERPA. This remains applicable even if education records exist which contain that information, unless the official had an official role in making a determination that generated a protected education record.
Under FERPA, a school is not generally required to maintain particular education records or education records that contain specific information. Rather, a school is required to provide certain privacy protections for those education records that it does maintain. Also, unless there is an outstanding request by a parent to inspect and review education records, FERPA permits the school to destroy such records without notice to the parent.
Access to Education Records
Under FERPA, a school must provide a parent with an opportunity to inspect and review his or her child's education records within 45 days following its receipt of a request. A school is required to provide a parent with copies of education records, or make other arrangements, if a failure to do so would effectively prevent the parent from obtaining access to the records. A case in point would be a situation in which the parent does not live within commuting distance of the school.
A school is not generally required by FERPA to provide a parent with access to school calendars or general notices such as announcements of parent-teacher meetings or extra-curricular activities. That type of information is not generally directly related to an individual student and, therefore, does not meet the definition of an education record.
Under FERPA, a school is not required to provide information that is not maintained or to create education records in response to a parent's request. Accordingly, a school is not required to provide a parent with updates on his or her child's progress in school unless such information already exists in the form of an education record.
Amendment of Education Records
Under FERPA, a parent has the right to request that inaccurate or misleading information in his or her child's education records be amended. While a school is not required to amend education records in accordance with a parent's request, the school is required to consider the request. If the school decides not to amend a record in accordance with a parent's request, the school must inform the parent of his or her right to a hearing on the matter. If, as a result of the hearing, the school still decides not to amend the record, the parent has the right to insert a statement in the record setting forth his or her views. That statement must remain with the contested part of the student's record for as long as the record is maintained.
However, while the FERPA amendment procedure may be used to challenge facts that are inaccurately recorded, it may not be used to challenge a grade, an opinion, or a substantive decision made by a school about a student. FERPA was intended to require only that schools conform to fair recordkeeping practices and not to override the accepted standards and procedures for making academic assessments, disciplinary rulings, or placement determinations. Thus, while FERPA affords parents the right to seek to amend education records which contain inaccurate information, this right cannot be used to challenge a grade, an individual's opinion, or a substantive decision made by a school about a student. Additionally, if FERPA's amendment procedures are not applicable to a parent's request for amendment of education records, the school is not required under FERPA to hold a hearing on the matter.
Disclosure of Education Records
Under FERPA, a school may not generally disclose personally identifiable information from a minor student's education records to a third party unless the student's parent has provided written consent. However, there are a number of exceptions to FERPA's prohibition against non-consensual disclosure of personally identifiable information from education records. Under these exceptions, schools are permitted to disclose personally identifiable information from education records without consent, though they are not required to do so by FERPA. Following is general information regarding some of these exceptions.
One of the exceptions to the prior written consent requirement in FERPA allows "school officials," including teachers, within a school to obtain access to personally identifiable information contained in education records provided the school has determined that they have "legitimate educational interest" in the information. Although the term "school official" is not defined in the statute or regulations, this Office generally interprets the term to include parties such as: a teacher; administrator; board member; support or clerical staff; attorney; nurse and health staff; counselor; human resources staff; information systems specialist; school security personnel; and a contractor, consultant, volunteer or other party to whom the school has outsourced institutional services or functions.
A school may disclose personally identifiable information from education records without consent to a "school official" under this exception only if the school has first determined that the official has a "legitimate educational interest" in obtaining access to the information for the school. A school that allows school officials to obtain access to personally identifiable information contained in education records under this exception must include in its annual notification of FERPA rights a specification of its criteria for determining who constitutes a "school official" and what constitutes "legitimate educational interests." A school official generally has a legitimate educational interest if the official needs to review an education record in order to fulfill his or her professional responsibility.
Another exception permits a school to disclose personally identifiable information from a student's education records, without consent, to another school in which the student seeks or intends to enroll. The sending school may make the disclosure if it has included in its annual notification of rights a statement that it forwards education records in such circumstances. Otherwise, the school must make a reasonable attempt to notify the parent in advance of making the disclosure, unless the parent or eligible student has initiated the disclosure. The school must also provide a parent with a copy of the records that were released if requested by the parent.
FERPA permits a school non-consensually to disclose personally identifiable information from a student's education records when such information has been appropriately designated as directory information. "Directory information" is defined as information contained in the education records of a student that would not generally be considered harmful or an invasion of privacy if disclosed. Directory information could include information such as the student's name, address, e-mail address, telephone listing, date and place of birth, major field of study, participation in officially recognized activities and sports, weight and height of members of athletic teams, dates of attendance, degrees and awards received, the most recent previous educational agency or institution attended, photograph, grade level (such as 11th grade or junior year), and enrollment status (full-time or part-time).
A school may disclose directory information without consent if it has given public notice of the types of information it has designated as directory information, the parent's right to restrict the disclosure of such information, and the period of time within which a parent has to notify the school that he or she does not want any or all of those types of information designated as directory information. Also, FERPA does not require a school to notify parents individually of the types of information it has designated as directory information. Rather, the school may provide this notice by any means likely to inform parents of the types of information it has designated as directory information.
FERPA also permits a school to disclose personally identifiable information from education records of an "eligible student" (a student age 18 or older or enrolled in a postsecondary institution at any age) to his or her parents if the student is a "dependent student" as that term is defined in Section 152 of the Internal Revenue Code. Generally, if either parent has claimed the student as a dependent on the parent's most recent income tax statement, the school may non-consensually disclose the student's education records to both parents.
There are several other exceptions to FERPA's prohibition against non-consensual disclosure of personally identifiable information from education records, some of which are briefly mentioned below. Under certain conditions (specified in the FERPA regulations, 34 CFR Part 99), a school may non-consensually disclose personally identifiable information from education records:
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to authorized representatives of the Comptroller General of the United States, the Attorney General of the United States, the U.S. Secretary of Education, and State and local educational authorities for audit or evaluation of Federal or State supported education programs, or for the enforcement of or compliance with Federal legal requirements that relate to those programs;
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in connection with financial aid for which the student has applied or received;
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to state and local authorities pursuant to a State statute concerning the juvenile justice system and the system's ability to effectively serve the student whose records are being disclosed;
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to organizations conducting studies for or on behalf of the school making the disclosure for the purposes of administering predictive tests, administering student aid programs, or improving instruction;
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to comply with a judicial order or a lawfully issued subpoena; and
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in connection with a health or safety emergency.
As stated above, the conditions specified in the FERPA regulations have to be met before a school may non-consensually disclose personally identifiable information from education records in connection with any of the exceptions mentioned above.
