The Abcs of Education Records and Student Privacy
| Publication year | 2020 |
| Pages | 0423 |
"This is going on your permanent record!" For generations, that threat has been used by parents and teachers on television shows and in movies to warn misbehaving students that a written record of their misdeeds would haunt them for the rest of their lives. In the real world, most people never think about what is in their or their child's K-12 school file, and the parameters of the law governing the confidentiality of those records are not widely known outside the education community.
However, over the past decade, the number of subpoenas that school board clients receive seeking student records (and subsequently the appearance of school employees to certify the records at trial) has increased exponentially. Most of those requests are made by family law attorneys seeking educational records of children involved in custody cases. Occasionally, attorneys defending clients in criminal matters seek those records for myriad purposes, including to help make the case that their client's IQ precludes a punishment of death. In addition, some parents and advocacy groups have recently become more concerned about the privacy of education records.
With that in mind, this article will address the basics of the law governing education records and how attorneys can save themselves time and frustration when obtaining those records for use in litigation, address parental concerns regarding the confidentiality of education records, and ease the administrative burden that requests for records too often present to school systems.
Education Records Defined
The Family Educational Rights and Privacy Act ("FERPA") is the federal law that governs the confidentiality of education records.1 FERPA applies to educational agencies or institutions that receive funds from programs administered by the U.S. Department of Education, including public schools, school districts, and postsecondary institutions, such as colleges and universities.2 While the U.S. Supreme Court has ruled there is no right to sue under FERPA,3 schools that fail to comply risk losing federal funds.
FERPA defines education records as records that are (1) directly related to a student and (2) maintained by an educational agency or institution or a party acting for or on behalf of the agency or institution.4 Examples of education records include grades, transcripts, class lists, student course schedules, health records (at the K-12 level), and student discipline files which may exist in various formats.5 This definition is broad, but FERPA does contain notable exceptions regarding what constitutes an education record.6
For instance, FERPA does not protect information obtained through personal knowledge or observation even if a record containing the information exists. However, if a school official had an "official role in making a determination maintained in the education records about the student" such as a disciplinary action, that information remains protected by the law.7 FERPA also exempts "records which are kept in the sole possession of the maker of the records and are not accessible or revealed to any other person except a temporary substitute for the maker of the records."8 This rule allows school officials to keep records that serve as "a 'memory jogger' for the creator of the record" (e.g. notes regarding telephone or face to face conversations).9
Given the widespread awareness of the Health Insurance Portability and Accountability Act of 1996 ("HIPAA") which protects health information, questions sometimes arise regarding the protections afforded medical information in student files, which routinely include immunizations and records obtained or created by the school nurse. However, HIPAA rarely applies to K-12 schools because most schools are not HIPAA-covered entities, and those that are only maintain health records that are considered education records under FERPA and not "protected health information" under HIPAA.10
FERPA itself does not require a school to maintain any particular information about a student, and it does not address how long the school system must retain records. The decision as to what information should be maintained in the student's educational record and for how long is determined by applying other federal and state statutes. The only retention requirement in FERPA states that the school cannot destroy education records if there is an outstanding request to inspect the records by the parent or eligible student.11
Access to Records
FERPA requires that schools provide parents12 and eligible students13 (must be 18 or older or attending a postsecondary education institution) the opportunity to inspect and review the student's education records upon request within a reasonable time period, but not more than 45 days after the school receives the request. Interestingly, the right of parents and eligible students to inspect and review a student's education records is the only type of disclosure mandated by FERPA, but there are limitations on the disclosure.14 "If the education records of a student contain information on more than one student, the parent or eligible student may inspect and review or be informed of only the specific information about that student."15
Family law attorneys should note that physical or legal custody of a child does not control which parent may access a student's records. FERPA requires that the school give "full rights under the Act to either parent, unless the [school] has been provided with evidence that there is a court order, state statute, or legally binding document relating to such matters as divorce, separation, or custody that specifically revokes these rights."16 In other words, the non-custodial parent may still access their child's education records unless a divorce, custody, or other order specifically revoking those rights exists. In addition, "a stepparent may be considered a 'parent' under FERPA if the stepparent is present on a day-to-day basis with the natural parent and child and the other parent is absent from that home."17 Likewise, a "grandparent or other caregiver who is acting in the absence of the parent(s) may also be considered a 'parent' under FERPA."18
Therefore, attorneys representing a parent who is concerned that the ability of the other parent or stepparent to access school records could create problems should ensure that they obtain a court order or other legally-binding document that specifically revokes the other parent's right to the records and provide the order to the school. Parents should not rely on school officials to make that determination. In addition, attorneys serving as guardian ad litem who want to review the student's school records should obtain an order allowing them to access those records and provide it to the school.
As a practical matter, information regarding school activities are typically sent to the parent who enrolled the student as they control what contact information is provided to the school. Sometimes, that parent may neglect or refuse to provide the other parent with information regarding school activities, so the other parent may make a standing request to be provided information regarding their child and school activities. However, FERPA does not require a school to "honor standing requests, to provide immediate access to records, or to send out grades to parents at the end of marking periods."19 Nor does it require the provision of documents "such as school calendars, updates, or notices of parent/teacher conferences" or information "about school plays, spelling bees, or sporting events in which their children may be participating."20 Therefore, while schools may try to keep both parents abreast of school activities, FERPA does not require a school to do so, and...
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