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The Family Educational Rights and Privacy Act (FERPA) of 1974 governs access to and release of education records by public and private schools that receive federal funding. FERPA defines a student’s education record as records, files, documents, and other material maintained by a school or a person acting for the school and containing information directly related to a student.[1] As a general rule, parents, guardians, or persons standing in loco parentis to the child have the right to review their minor child’s education records, including any health-related information it contains. However, there are two exceptions:

  • Memory-aid notes made by a school professional, such as a school counselor or psychologist, and maintained in that individual’s sole possession are exempt from the definition of education records. School officials may release them but are not required to.[2]
    Note: This does not include evaluations or other education records created in the student’s presence and/or with the student; these are education records and must be made available to parents.
  • School law enforcement unit[3] records created by school law enforcement officials for a law enforcement purpose are exempt from the definition of education records, as long as they are kept separate from other records at the school, and they may be shared with any party.[4] However, education records and information from education records maintained by a school law enforcement unit are subject to FERPA and should not be included in any release of school law enforcement unit records.

The Release of Education Records

Parents generally control the release of their child’s education records and third-party access to them. In most cases, schools must obtain written parental consent to share students’ education records. When a student turns 18, FERPA rights transfer to the student, who then assumes the rights of review and control over third-party access to his or her education records.

The following describes the circumstances under which a signed consent form from a student’s parent is not needed to release the student’s education record:

  • Schools may release information without parental consent to other school officials for enrollment purposes or in connection with a student’s financial aid application.[5]
  • A school may release “directory information” without obtaining parental consent if the school has given prior notice to parents of the specific types of directory information it intends to disclose, and parents have been given an opportunity to notify the school in writing that they do not want their child’s directory information disclosed. Under FERPA, directory information includes—but is not limited to—the following information about a student: name, address, phone number, date and place of birth, participation in officially recognized school activities and sports, dates of attendance, and photograph.[6]
  • Education records may be released without parental consent to school officials or teachers within the student’s school who have a “legitimate educational interest.” The school district must define the criteria for a legitimate educational interest.[7] A common example is when school district employees provide health care or counseling services to a student.

If a school district has a policy of allowing the release of education records to those with a legitimate educational interest, the school must include in an annual written notification to parents its criteria for determining who is a school official and what constitutes a legitimate educational interest.[8] School districts commonly define school officials as teachers, teachers aides, health and counseling staff, and administrative and legal staff. They may also include school board or school committee members and volunteers or employees of organizations with whom the school contracts to provide services. School officials who receive information under this exception must be made aware that they may not re-disclose the information except in accordance with FERPA.

  • FERPA allows disclosure of information contained in students’ education records without parental consent in connection with a health or safety emergency if the information is necessary to protect the health or safety of the student or others.[9] If a school determines that there is an articulable and significant threat to a student or other individuals and the information is needed to protect their health or safety, it may disclose the information to appropriate parties without parental consent. In order for a situation to constitute an articulable and significant threat, a school official must document in the student’s education record why, based on the information available, the official believes there is a substantial threat. Typically, law enforcement officials, public health officials, trained medical personnel, and parents are the types of appropriate parties to whom information may be disclosed under this FERPA exception.
  • Schools may disclose information without written consent to comply with a judicial order or subpoena, but the school must make a reasonable effort to notify the parent before releasing the record. Prior notice is not necessary, however, if the subpoena is from a federal grand jury or is issued for a law enforcement purpose and the subpoena instructs the school not to notify the parent.[10]
  • Schools may release information contained in an education record under FERPA’s research exception if it is for the limited purpose of improving instruction and if students’ personally identifiable information is protected. (Personally identifiable information includes a student’s name, parents’ names, address, social security number or student ID number, and list of personal characteristics or other information that would make the student’s identity easily traceable.) The information must subsequently be destroyed when it is no longer needed for the research.[11]
  • Schools may disclose personally identifiable information from a student’s education records without the consent of the student or the parent to the Attorney General of the United States or to the Attorney General’s designee in response to an ex parte order (an order issued by a court of competent jurisdiction without notice to an adverse party[12]) in connection with the investigation or prosecution of terrorism crimes.

FERPA and the Child Welfare and Juvenile Justice Systems

In 2011 FERPA was amended to permit child welfare case workers to have easier access to children’s education records. The Uninterrupted Scholars Act[13] creates a new exception under FERPA that allows schools to release a child’s education records to child welfare agencies without parental consent. This eliminates the previous requirement that education agencies had to notify parents before education records could be released. Most importantly, the act requires that schools give child welfare workers a free copy of the child’s Individualized Education Program (IEP) and permit the case worker to see all of the child’s education records. However, the parent still has the ability to “correct” the child’s records if necessary and remains the FERPA parent for purposes of accessing the child’s education record.

FERPA identifies the circumstances in which schools may release education records to juvenile justice agencies. Juvenile justice personnel may receive educational information regarding a student involved in the juvenile justice system without the consent of the student’s parent when all of the following conditions are in place:

  1. The child has not yet been adjudicated delinquent[14] under state law.
  2. A state law specifically authorizes the disclosure. (Find out whether your state has such a law.)
  3. The disclosure is to state or local juvenile justice system officials or authorities.
  4. The disclosure relates to the juvenile justice system’s ability to provide pre-adjudication services to a student.
  5. State or local officials certify in writing that the officials and authorities receiving the information have agreed not to disclose it to any party outside the juvenile justice agency.[15]

[1] 20 USC § 1232g(a)(4)(A).

[2] 20 USC § 1232g(a)(4)(B).

[3] As defined in FERPA, a law enforcement unit includes any individual, office, department, or other component of an educational agency or institution that is officially authorized by the school to enforce laws, maintain the physical security and safety of the school, and refer matters to any appropriate outside law enforcement authority (99 C.F.R § 99.8[a][1]). Law enforcement units include, for example, units of commissioned police officers and non-commissioned security guards.

[4] 99 C.F.R. §99.3.

[5] 20 USC § 1232g(b)(1).

[6] 99 C.F.R. §§ 99.31(a)(11); 99.37.

[7] 20 USC § 1232g(b)(1).

[8] 99 C.F.R. § 99.7(a)(3)(iii).

[9] 20 USC § 1232g(b)(1).

[10] 20 USC § 1232g(b)(1).

[11] 20 U.S.C. § 1232g(b)(1)(F).

[12] 20 U.S.C. § 1232b(b)(1)(C). See 18 U.S.C. 2332b(g)(5)(B) and 2331 for enumerated crimes.

[13] Public Law 112-278.

[14] An adjudicated delinquent is a person under 18 who has been found by a juvenile court judge to have committed a violation of a criminal law.

[15] 20 USC § 1232g(b)(1).