Legal Files Archives

Educational Records: A Primer on FERPA
By Phil Stinson, Esq.

The Family Educational Rights and Privacy Act (FERPA) is a Federal law that protects the privacy of student education records. The law applies to all schools that receive funds under an applicable program of the U.S. Department of Education. FERPA provides parents with the right to inspect educational records, prohibits disclosure of confidential student records in many circumstances by school officials, and gives parents the right to challenge the content of educational records that are inaccurate. Copies of the FERPA statute and regulations are available at http://www.specialedlaw.net.

FERPA gives parents certain rights with respect to their children's education records. These rights transfer to the student when he or she reaches the age of 18 or attends a school beyond the high school level. Students to whom the rights have transferred are "eligible students."

• Parents or eligible students have the right to inspect and review the student's education records maintained by the school. Schools are not required to provide copies of records unless, for reasons such as great distance, it is impossible for parents or eligible students to review the records. Schools may charge a fee for copies.

• Parents or eligible students have the right to request that a school correct records which they believe to be inaccurate or misleading. If the school decides not to amend the record, the parent or eligible student then has the right to a formal hearing. After the hearing, if the school still decides not to amend the record, the parent or eligible student has the right to place a statement with the record setting forth his or her view about the contested information.

• Generally, schools must have written permission from the parent or eligible student in order to release any information from a student's education record. However, FERPA allows schools to disclose those records, without consent, to the following parties or under the following conditions (34 CFR §§ 99.31):

• School officials with legitimate educational interest;
• Other schools to which a student is transferring;
• Specified officials for audit or evaluation purposes;
• Appropriate parties in connection with financial aid to a student;
• Organizations conducting certain studies for or on behalf of the school;
• Accrediting organizations;
• To comply with a judicial order or lawfully issued subpoena;
• Appropriate officials in cases of health and safety emergencies; and
• State and local authorities, within a juvenile justice system, pursuant to specific State law.

Schools may disclose, without consent, "directory" information such as a student's name, address, telephone number, date and place of birth, honors and awards, and dates of attendance. However, schools must tell parents and eligible students about directory information and allow parents and eligible students a reasonable amount of time to request that the school not disclose directory information about them. Schools must notify parents and eligible students annually of their rights under FERPA. The actual means of notification (special letter, inclusion in a PTA bulletin, student handbook, or newspaper article) is left to the discretion of each school.

The case of Doe v. Woodford County Bd. of Educ. offers insight into how courts review claims of FERPA violations by public schools. On May 26, 2000, the United States Court of Appeals for the Sixth Circuit issued in opinion in Doe v. Woodford County Bd. of Educ. (No 99-5369) holding that a conversation between a high school coach and principal that might have been overheard by students was not a violation of the Family Education Rights Privacy Act (FERPA). In Doe, a high school principal questioned the school's basketball coach as to the appropriateness of the participation of a student with hemophilia and hepatitis B on the school's basketball team. The conversation may have been overheard by other students, and resulted in the student being placed on a "hold" status until the school obtained a clearance from the student's physician.

The Court held that the facts of the case fell within the exceptions to FERPA, including sharing of information between teachers within the educational institution with a legitimate educational interest in the child, and disclosure of personally identifiable information from an educational record to appropriate parties if it is necessary to protect the health or safety of the students or others. While "personally identifiable information" is narrowly defined by the Act's regulations as including only the student's name, parent's name, the student's or parents' address, social security number, or other information that would make the student's identity easily traceable, and may not include a suggestion to review a student's medical records on file with the school, the Court noted that the exception does reveal Congress' intention to allow disclosure when there are genuine health or safety concerns for the students or others.

The Court also held that the school defendants were in a "catch-22" situation regarding the plaintiffs' claims pursuant to the Americans with Disabilities Act (ADA) and Section 504 of the Rehabilitation Act of 1973. The Court summed up the "catch-22" as follows:

On the one hand, defendants had to be aware of possibly infringing upon John's civil rights under the Rehabilitation Act and the ADA if they excluded John from participation on the basketball team. On the other hand, defendants faced potential liability from other students and parents if they allowed John to play on the team and another student accidently became exposed to John's contagious condition. Under the circumstances, defendants acted quite appropriately when they placed John on "hold" status over a brief three week period while defendants decided how they should proceed.

As such, the Court found no violation of FERPA, the ADA, or Section 504. The Court did not reach the issue of whether the plaintiffs failed to exhaust their administrative remedies, as the case was disposed of by reviewing the district court's decision below on the merits. Click here for the Court's opinion: http://www.specialedlaw.net/PDF/specialedlaw.net.caselaw.doe.v.woodfordcounty.ferpa.may.2000.pdf

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Phil Stinson, Esq. is a senior partner at Stinson Law Associates, P.C., a Philadelphia-based law firm dedicated to representing parents of children with special needs in federal courts throughout the country, is Director of the Special Education Law Clinic in Chester, Pennsylvania, is President and General Counsel of the Center for Education Rights (http://www.edrights.org) and is the editor of SpecialEdLaw.net, a multidisciplinary Internet resource portal (http://www.specialedlaw.net). Parents of children with special needs may contact Phil Stinson by e-mail at stinson@specialchild.com.

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