FERPA - Handbook

FERPA is the Family Educational Rights and Privacy Act. It is a Federal law (a law of the United States government) that governs the disclosure of student education records. Because of FERPA, schools that receive funding from the United States Department of Education are required to protect the privacy of student education records by notifying parents and eligible students annually of their rights to privacy in those records and by obtaining written consent before disseminating the information to any person or organization who is not legally entitled to the records.

A student education record is the record maintained by a school about a student. A student education record contains directory information, which can include the student’s name, address, telephone number, date and place of birth, dates of attendance, field of study, degrees and awards received, sports and activities participation, weight and height of athletic teams, and the most recent educational institution attended. If a school or educational agency makes public its directory information, it must give public notice of which categories it includes in its directory information and must allow parents and eligible students the right to demand that all or any information released must not be released without prior consent.

Consent may be obtained from a parent, guardian or eligible student. An “eligible student” is one who has reached the age of 18, has been emancipated, or attends an institution of postsecondary education.

Parties to whom the disclosure of student education records is permitted without parental consent may include school officials; authorized government authorities and officials; persons seeking the record for purposes of administering financial aid; accrediting organizations; organizations conducting studies authorized by the school district; and persons seeking the record for the juvenile justice system or pursuant to a court order.

The Family Educational Rights and Privacy Act (“FERPA”) is a U.S. Federal law that serves to protect the privacy of students by limiting the parties to whom a student’s education records may be produced. In addition, FERPA provides for the mandatory access of those records to parents, guardians, or, in certain situations, students. Entities subject to FERPA include schools and agencies that receive funding from the United States Department of Education.

FERPA governs the dissemination of education records. Specifically, FERPA prohibits the disclosure or release of a student’s records without the consent of a parent or guardian or a student, if that student is emancipated, has reached the age of 18 or is enrolled in a university course for credit. For ease of clarity, throughout the Handbook the phrase “parental consent” will entail guardian and appropriate student consent.

FERPA limits access to students’ education records. As defined by FERPA, an education record is information about a student recorded by any medium, including handwriting, computer media, microfilm, audio tape and video tape. An education record contains personally identifiable information such as the student’s first and last name; the name of the individual’s parent, guardian or other family member; the student’s physical street address, telephone number, Social Security number or other identifying number; and a photograph or list of personal characteristics of the student. In addition, the record may include information such as the student’s health and immunization information, date of enrollment in school, attendance, grades and credits, progress reports, standardized test results, and bus route. Information about a student’s special education curriculum is also included.

Note that the following are not considered part of a student’s education record and are therefore not subject to the rules of FERPA:

-Handwritten notes from school administrators, educators and counselors (to students or to substitute personnel)

FERPA affects the privacy practices of schools, school districts, and education agencies that receive direct funding from the United States Department of Education. Generally, the law affects public elementary and secondary schools and state school agencies.

There are a number of government and educational bodies which may be granted access to a student’s education record without first obtaining parental consent. Although it may vary between local agencies and educational administrations, these personnel include “school officials” such as administrators, board members, supervisors, teachers, administrative staff, and third parties (such as attorneys, therapists or companies) with whom the school district has contracted to undertake a particular task.[2]

While information revealed to third parties must be closely guarded, certain third parties such as Federal, state and local education authorities, school districts and post-secondary institutions in which the student intends to enroll, organizations using the information for the purposes of determining financial aid and, pursuant to state law, juvenile justice personnel and other state and local officials may be granted access to a student’s records without parental consent. In addition, a student’s “directory information,” which includes a student’s name, address, telephone number, birthplace, school attendance schedule and honors received, may be disclosed without parental consent. There is a caveat to this, however; a parent must be given notice of what constitutes “directory information” and allowed a reasonable amount of time to state his or her objection to the disclosure of that information.

According to FERPA, school personnel who are given access to a student’s record must have a “legitimate educational interest” in obtaining such information. The statute does not delineate which personnel should be granted access or what constitutes a legitimate interest. However, a school district or education agency should prepare a written policy to guide those making decisions about disclosure of student records. This policy could include, for example, guidelines for disclosure such as whether the information is needed to carry out an administrator’s job function; whether the information will be used only within the confines of official school business; and whether the information is necessary for the evaluation of or work for a student.

When a school district or educational agency plans to disclose education records about students to other parties, parental consent must first be sought. The consent notice must delineate which records may be disclosed, for what purpose they may be disclosed, and to whom they may be disclosed. If a parent so desires, he or she may obtain a copy of the disclosed information from the school district or agency.

Data collected about a student must be collected for a disclosed, justified purpose. Student data may be used for purposes of operating and managing the school district; for the benefit of teachers, counselors and the like; and for research about the progress of a school and its educational programs. A school district or educational agency should prepare a written statement for the data provider (usually, the parent or guardian) explaining the purpose of each item of information collected and discussing the measures taken to ensure that such information will be disclosed only to certain personnel for legitimate educational interests. Such a statement can be included in the district’s annual notification policy, which should also contain a discussion about parental rights of access, review and correction of student records.

In addition, each school district or educational agency should have its own policy classifying the sensitivity of data collected about students. This is to ensure that only that information which is necessary to a particular educational interest is disclosed.

As noted above, each school district or educational agency must publish an annual notification policy to parents (including guardians and eligible students) of their rights under FERPA. In addition to information about data collection, this policy should detail the following procedure for inspection and review of student records:

autonum1. Parents have the right to inspect and review their child(ren)’s student record(s).

autonum2. Once it is in receipt of a parent’s written request for student record(s), the school district or educational agency, in turn, should verify the request and respond within 45 days.

autonum3. The school district or educational agency should notify the parent of a time and place where the parent may review the record(s).[3]

autonum4. After reviewing the records, parent then has the right to request that information in the records be corrected if the parent believes them to be inaccurate or in violation of a student’s rights.

autonum5. If the school district or educational agency decides, after reviewing the parental request, not to change the record(s), the parent should be notified and informed of his or her right to challenge the decision in a hearing.

autonum6. If, after the hearing, it is decided that the information challenged does not present the offense declared by the parent, the school district or educational agency should notify the parent of that fact and must present the parent with the option of writing a statement, to be included in the record, of the parent’s position on the challenged information.

autonum7. If, after the hearing, it is decided that the challenged information is indeed incorrect or in violation of a student’s rights, the school must amend the record and notify the parent in writing that it has done so.

Note that parents of disabled students or non-English speaking parents are also entitled to receipt of this information, also on an annual basis.

FERPA presents extensive guidelines for the protection of student privacy in educational records. It is up to the school districts, administrations, and educational agencies to ensure that each school within the district to which FERPA is applicable takes appropriate steps to ensure compliance with the law. For further information or to determine whether your school or district is FERPA-compliant, contact Parry Aftab, Esq. or your local lawyer. For additional information, visit the U.S. Department of Education website at http://www.ed.gov.

[1] This Handbook is intended to provide a basic understanding of FERPA guidelines to education administrators and parents. The Handbook is not a substitute for legal advice. If you have questions about whether your local school district or educational agency is FERPA-compliant, contact Parry Aftab, Esq. or your local school district lawyer directly.

[2] Transmittal of such information should be done in a manner protecting the anonymity of the students.

[3] It is advisable to have a school or agency staff member monitor the review and answer any questions the parent may have as to the confidentiality and maintenance of the records. Also, records should not be copied and sent to parents barring special circumstances such as distance or illness.