Bucking Up Buckley Ii: Using Civil Rights Claims to Enforce the Federal Student Records Statute

• Jurisdiction: United States,Federal
• Citation: Vol. 21 No. 04
• Publication year: 1997

SEATTLE UNIVERSITY LAW REVIEWVolume 21, No. 1SUMMER 1997

Bucking Up Buckley II: Using Civil Rights Claims to Enforce the Federal Student Records Statute

Lynn M. Daggett(fn*)

INTRODUCTION

A 1974 federal statute, the Buckley Amendment (Buckley), also known as the Family Educational Rights and Privacy Act or FERPA,(fn1) comprehensively regulates student records kept by most United States schools, both public and private, whether serving students at the elementary, secondary, or higher education levels.(fn2) As a condition of receiving federal education funds, Buckley requires schools to provide parents of minor pre-college students, and adult and college students, access to their school records, confidentiality in those records, and an opportunity to challenge their accuracy.

Enforcing Buckley has been problematic, and, consequently, litigants have treated Buckley largely as an afterthought.(fn3) Buckley itself provides for enforcement solely through filing complaints with a federal office for voluntary resolution.(fn4) The only sanction available against schools, withdrawal of all federal education funds,(fn5) has never been imposed. After an early, and singularly unsuccessful, attempt to get courts to recognize a private cause of action,(fn6) case law dealing with Buckley consisted largely of secondary claims tacked on to, for example, special education statutory claims.(fn7) Recently, however, a growing number of courts have either held or suggested that a civil rights claim under 42 U.S.C. § 1983 (Section 1983) may be used to redress alleged Buckley violations.(fn8)

This Article explores enforcement of Buckley and, in particular, the possibilities of using Section 1983 claims for this purpose. It concludes that Section 1983 claims have only limited potential, under narrowly defined circumstances, as a remedy for Buckley violations. Part I of this Article summarizes Buckley's substantive provisions; a comprehensive review is available in a companion article.(fn9)

Part II reviews enforcement of Buckley, other than through Section 1983 claims. Specifically, Part II examines the statute's two enforcement mechanisms as well as the potential of state law tort claims to enforce Buckley and the indirect enforcement mechanism of workplace discipline of employees who violate Buckley.

Part III of this Article first reviews Section 1983 doctrine generally as well as its potential to redress Buckley violations. Part III concludes that, while Section 1983 claims are an available remedy to redress Buckley violations, established Section 1983 doctrine significantly limits potential defendants, success, and remedies for such claims.

Part IV of the Article explores five problems inherent in the (weak) array of enforcement mechanisms currently available for Buckley. The Article concludes by urging Congress to reexamine Buckley's enforcement mechanisms and suggests an administrative remedy which would address the identified problems with existing enforcement mechanisms.

I. Overview of Buckley/FERPA(fn10)

Buckley was enacted in 1974.(fn11) According to its sponsor, Buckley was enacted to cure "the growing evidence of the abuse of student records across the nation"(fn12) by (1) assuring parent access to records and (2) protecting the privacy of those records.(fn13) Buckley also provides parents an opportunity to challenge records. There is some dispute about whether Buckley's purpose is to address individual records violations or merely to prevent systemic violations.(fn14)

Buckley also requires schools to notify parents annually of their Buckley rights.(fn15) Further, Buckley is part of the General Education Provisions Act(fn16) and as such operates as a condition on the receipt of most federal education funds, rather than as a direct mandate.(fn17) No federal funds are available to schools specifically to help them comply with Buckley.

A. Schools and Other Agencies Covered by Buckley

Any educational agency, public or private, state or local, at the elementary, secondary, or higher education level that receives federal education funds under most programs(fn18) (including, for example, federally guaranteed student loans) is subject to Buckley.(fn19) For the sake of simplicity, this Article refers to the various educational agencies covered by Buckley as "schools."

B. "Student" "Records" Under Buckley

"Records" covered by Buckley must be those of "students" in (or formerly in)(fn20) attendance at the school.(fn21) For example, a student who is not accepted to law school, or who is accepted but does not enroll, has no Buckley right to access her application file.(fn22) "Records" are defined quite broadly by the statute. Any recorded information created or maintained(fn23) by a school, or a school employee, or a person "acting for"(fn24) a school (such as an independent contractor or privately retained attorney)(fn25) that directly relates to a particular student is a "record" for Buckley purposes.(fn26) The record must contain "personally identifiable" information about a student, usually (but not always) her name.(fn27) The information need not be recorded in words nor contained in written documents. Any permanent recording such as a tape or film, a picture, or a computer file(fn28) can be a "record."(fn29) Unrecorded information, such as something heard by a teacher, is not a Buckley record, nor (according to one court) is information about a student obtained from an external source such as a newspaper article.(fn30) Moreover, to be a Buckley record, student information does not have to be in the official "student file"; it may, for example, be in a teacher's desk, nurse's office, or principal's file.

Four kinds of school documents are explicitly excluded from the definition of "records" under Buckley. First, records under Buckley do not include "sole possession notes."(fn31) These are notes (such as a school counselor's notes of a treatment session) prepared by a single school employee which are neither accessible to, nor actually accessed by,(fn32) anyone except the employee or the employee's substitute, including other school employees. Second, for students aged 18 and over or in higher education only, records under Buckley do not include health treatment records accessible only to treatment staff, even if not sole possession notes.(fn33) Access is available, however, to a treatment professional of the student's choosing.(fn34) Third, as a result of recent amendments to the statute and regulations, Buckley records do not include records created and maintained for law enforcement purposes by a law enforcement unit(fn35) within a school.(fn36) Finally, information about former students after they have left a school (for example, accomplishments of an alumnae) are not Buckley records.(fn37)

C. "Parents" Under Buckley

Buckley gives rights to "parents." It defines "parents" broadly to include caretakers who are not biological parents, as well as adult students themselves.(fn38) Under Buckley, "parent" includes any parent (including noncustodial parents unless there is a court order or law specifically to the contrary)(fn39) or persons "acting as a parent in the absence of a [natural] parent" (guardian, stepparent, grandparent, etc.).(fn40) Buckley "parent" rights are transferred to students at the age of 18 or when they enroll in a higher education institution.(fn41) Thus, college and adult students (and former students) have the right to access their own records. In discussions that follow, the term "parent" refers to persons with Buckley rights, including adult and college students.

D. Right to Access Records Under Buckley

Buckley gives parents, upon request, the right to access their child's records within a "reasonable" time-no later than forty-five days after request.(fn42) Access does not generally include the right to a copy of record. Parents are entitled to a copy of their child's records only if denying the copy "would effectively prevent the parent from exercising the right to inspect and review the records."(fn43) In most cases, schools may charge parents a modest copy fee.(fn44) Access does include the right to "reasonable" explanations and interpretation of records, for example, a conference with a teacher about a report card grade.(fn45) Access rights may not be waived, except by older students who may waive access to letters of recommendation.(fn46)

E. Confidentiality of Records as to Third Parties

In general, third parties cannot access student records without written parent consent.(fn47) It is equally as prohibited under Buckley to disclose information contained in student records orally as it is to disclose the records themselves.(fn48) Under most circumstances, written, dated consent of a parent is required to release student records.(fn49) The consent must specify the records, the person to whom they are to be released, and the reason for the release.(fn50) When records are released pursuant to written consent, the parents and student are entitled to a copy (for a fee) of the released records upon request.(fn51) The many exceptions to the consent requirement are described in detail at 34 C.F.R. § 99.31. Schools may, but are not required to,(fn52) disclose student records without consent in the following circumstances:a. To other officials or employees of the school officials who have a legitimate educational...