Student Records – FERPA

Annually Notify

Colleges are required to do this for parents or eligible students so that they are aware of their rights to inspect and review records, seek amendment of records, provide consent to disclose records and files a complaint with the Department of Education for compliance failures.

Dates of Attendance

Academic year, fall term or first quarter; daily records are not necessary.

Dependent

For parents to be given general access to their child’s college records, they must have claimed the student as this on their last federal income tax statement.

Family Policy Compliance Office (FPCO)

Where FERPA complaints are filed; communicates with ED to determine eligibility for funding (attach to FERPA)

Indirect Recipients

A college is considered to be this if its students receive monetary benefits such as federal grants, loans or work-study.

Parent

May be a natural parent, a guardian, or an individual acting as a parent in the absence of a parent or guardian.

Proper Identification

Students can be required to provide this to gain access to personal records and to review the docket or file while in the records office.

FERPA

This law applies only to educational institutions that are either direct or indirect recipients of federal funds made available by the Department of Education (20 USC § 1232g; 34 CFR Part 99). Specifically, the law states that: "No funds shall be made available under any applicable program to any educational agency or institution which has a policy of denying, or which effectively prevents, the parents of students who are or have been in attendance at a school of such agency or at such institution . . . the right to inspect and review the education records of their children" (emphasis added) (20 USC § 1232g(a)(1)(A)). Funds may be withheld either when there is a policy of denying access OR when the institution effectively prevents access, regardless of policy.

FERPA – who is it limited to?

FERPA (like title IX) is limited in application only to educational entities (e.g., Letter to University of Wisconsin (FPCO Feb. 3, 2003) (finding no FERPA violation when the requested records were maintained by an organization and not the university)).

Qualifying as a Person to Whom Access is Permitted and From Whom Permission is Acquired

The FERPA provides access rights to the parents of a student until the student reaches the age of 18. At age 18 OR when the student attends an institution of postsecondary education, the student is permitted access and provides consent for others to gain access (34 CFR §§ 99.3 & 99.5; Mesa College, 6 FAB 7 (FPCO 2002)). The child must be a current or former student—including correspondence and work-study programs on a part-time or full-time basis (34 CFR § 99.3).

Does FERPA apply to audited courses or to those denied admission?

Access is not required for students who have only audited courses or for those who have applied but were denied admission (20 USC § 1232g(a)(6); 34 CFR § 99.5(c); Tarka v. Franklin, 891 F.2d 102 (5th Cir. 1989)).

How can parents get access to educational records?

For parents to be given general access to their child’s college records, they must have claimed the student as a dependent on their last federal income tax statement. If so, then access may be permitted; if not, access must be denied (20 USC § 1232g (b)(1)(H); Internal Revenue Code, 26 USC §152). Note that although FERPA permits colleges to provide access to "eligible parents," it does not require access, even if the student is found to be a dependent (Mesa College, 6 FAB 7 (FPCO 2002)). Given that providing access to parents of college students is discretionary, it is recommended that the student be notified of the access request and be permitted to show that he or she is no longer a dependent. This practice will further protect the privacy right of the student.

What Does Qualify as a Student Record?

-Records to which FERPA applies include any student-specific educational record that the institution is required to maintain by the federal or state government, or any record that college/school district officials elect to maintain. -Accessible records may be in any form (e.g., handwritten, print, computer media, video tape, audio tape, film, microfilm, microfiche) -Disciplinary records

What Does Not Qualify as a Student Record?

Not included within the definition of educational records are: • those that are prepared at the discretion of educators and administrators and are kept in the sole possession of the originator and revealed to no one other than a temporary substitute teacher; • law enforcement records • employment records • records on a student who is age 18 or older, or attending a postsecondary institution, that are made by a physician, psychiatrist, psychologist, or other professional or paraprofessional that are disclosed only to individuals providing treatment; • alumni records • records regarding preferential treatment of athletes and coaches in regard to parking tickets • test scores before they are recorded in the teacher’s grade book or placed in official school records

Colleges/school districts need not provide access to the following:

• financial records submitted by his or her parents • test protocols • "waived" recommendations and confidential letters Note that FERPA does not stipulate how long information must be retained. State law, regulations, and policy should be consulted in such matters.

How long does a school have to respond to request to Student Access of Personal Records?

The college/school district must make available any accessible student records that have been properly requested within a reasonable time and in no case more than 45 days after the request

Can a student remove material from his./her record?

The student does not have the right under FERPA to remove material, to substitute materials. However, once access is gained, students have the right to have records explained and interpreted

Parent/Eligible Student Release of Records to Third Parties

Generally, student consent (dated and in writing) is required before the college/school district can disclose personal information from education records

The consent form used by the college/school district must identify:

• the records to be released, • the person to whom they are to be released, and • the purported reason for the release

However, forms need not be completed when:

• the student gains personal access or has requested access for others; • when college/school officials with legitimate educational interests review files; or • when a third party accesses only directory information

# of years to deny violator (secondary reviewer) for providing unauthorized access?

If such a secondary receiver of the records provides unauthorized access, the originating institution must deny records access to the violator for at least five years

Access When Student Permission Is Not Required

Depending upon the aggregate of circumstances, a college/school district may disclose records without student permission to the following : • college/school officials (including legal counsel) with a legitimate educational interest in the file • other colleges to which the student has applied (assuming notification of transfer) • juvenile justice authorities • selected federal, state, and local education authorities for audit and evaluation purposes • persons needing access for financial aid purposes • selected educational organizations conducting studies for predictive test development purposes, the administration of student aid programs, or improving instruction • organizations for accreditation purposes • persons needing emergency access to protect the health or safety of the student or other persons • victims of violent crime or nonforcible sex offense (i.e., statutory rape, incest) and others (limited to records indicating the results of college disciplinary proceedings involving the alleged perpetrator) • individuals with a lawfully issued subpoena or court order, although an effort should be made to notify the parent/eligible student prior to the release—provides the opportunity to acquire a protective order • the court in an action against the parents or eligible student (either as plaintiff or defendant—theory of implied consent) • the public in the form of directory information • the parent or eligible student • the parents of an underage (below age 21) child who has violated alcohol and controlled substance policies, as determined by the appropriate disciplinary committee or staff member

Directory Information

Unless restricted by state law, colleges/ school districts may make directory information available to the public without student consent Release of such information would not generally be considered harmful or an invasion of privacy. Directory information may include, but is not limited to, the student’s: • name, • address, • phone number, • e-mail number, • photograph, • date and place of birth, • major, • grade level and enrollment status (undergraduate or graduate, full or part-time), • list of activities and sports, • weight and height of members of athletic teams, • dates of attendance, • degrees, honors, and awards received, and • most recent previous educational institution attended

Right to Amend/Challenge Records

Parents/eligible students who believe that information contained in the education record is inaccurate, misleading, or in violation of any of their FERPA rights may request that the records be amended If the college/school official decides that the records should not be changed, the student must be advised of the right to a hearingto be conducted by a disinterested third party, although the person may work for the institution The hearing must be held within a reasonable period of time with the student given advanced notice of the date, time, and place ( At the hearing, the student may present evidence and be represented by individuals of his or her choice, including an attorney Within a reasonable time period, the written decision of the hearing officer must be given to the complainant. The decision must: (1) be based only on the evidence presented at the hearing, (2) provide a summary of the evidence, and (3) identify the reasons for the decision If the parent or eligible student prevails, the record must be changed and the complainant must be informed of the amendment in writing

Can a student challenge grades under the FERPA right?

The FERPA right to challenge inaccurate records does not entitle the student to challenge grades assigned for courses, unless the grade resulted from mathematical error or was not what the instructor intended

Private Right of Action v. Complaint Procedure

There is no private right of action under FERPA (i.e., a student lacks standing to bring suit under this law). Moreover, a student may not file suit under § 1983 to claim a FERPA violation However, a student may file a complaint with the Family Policy Compliance Office (FPCO) in the United States Department of Education

Statute of limitations for filing FERPA complaints?

A 180-day statute of limitations generally applies for filing complaints. The limitations period begins on the date the violation allegedly occurred or when the student knew or reasonably should have known of the violation

What happens when a FERPA complaint is filed?

There is no actual hearing when FERPA-based complaints are filed. Instead, FPCO notifies the college/school district of the allegations and requests a written response. It then investigates the complaint, determines whether an infraction has occurred, and notifies the parties of its decision, including instructions on how to rectify the situation if the allegation is supported The Secretary of the Department of Education may initiate proceedings to withhold federal funds or terminate eligibility for future funding if a pattern of violations has been proven and the college/school district still has refused to amend its practices, notwithstanding DOE efforts to compel compliance (e.g., a cease-and-desist order). Prior to the termination of financial support, it must be shown that compliance cannot be secured through voluntary means.

What other school law, in addition to FERPA, applies only to educational institutions?

Title IX of the Education Amendments of 1972

Does FERPA apply to institutions that receive no direct or indirect federal aid, other than through contracts?

No, it does not.

Does FERPA apply institution wide, similar to Title VI, the Age Discrimination Act, Title IX, and Section
504?

Yes, it does.

Is it the same in college as in K-12 schools?

No, it is very different.

Provide an example of indirect federal financial assistance.

The college/school district is considered an indirect recipient of funds if its students receive monetary benefits such as federal grants, loans, or workstudy (e.g., Pell Grants, Guaranteed Student Loans).

Who has access rights under FERPA?

FERPA provides access rights to the parents of a student until the student reaches the age of 18. At age 18 OR when the student attends an institution of postsecondary education, the student is permitted access and provides consent for others to gain access.

Does a student qualify for access when taking only distance courses?

Yes, if they are enrolled in the course.

What about courses that are audited?

Access is not required for students who have only audited courses or for those who have applied but were denied admission.

Explain the role of "dependency" in determining whether access may be provided to the parents of a college student. In such circumstances, must access be given?

For parents to be given general access to their child’s college records, they must have claimed the student as a dependent on their last federal income tax statement. Note that although FERPA permits colleges to provide access to "eligible parents," it does not require access, even if the student is found to be a dependent. Given that providing access to parents of college students is discretionary, it is recommended that the student be notified of the access request and be permitted to show that he or she is no longer a dependent. This practice will further protect the privacy right of the student.

Do divorced, separated, or estranged parents have the right to access student records?

Either parent should be given access, unless 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.

How may a notice of FERPA rights be provided?

Colleges/school districts are required to annually notify parents or eligible students of their rights to inspect and review records, seek amendment of records, provide consent to disclose records, and file a complaint with the Department of Education for compliance failures.

What qualifies as a student record?

Records to which FERPA applies include any student-specific educational record that the institution is required to maintain by the federal or state government, or any record that college/school district officials elect to maintain. Accessible records may be in any form (e.g., handwritten, print, computer media, video tape, audio tape, film, microfilm, microfiche). Disciplinary records are included as student records and therefore receive FERPA protection.

Do sole possession notes of a professor or teacher qualify as student records? If so, when?

These records to do not receive FERPA protection.

How would a student go about accessing his or her own records?

Students must make an official request for such records.

Must test scores be shown, and then discussed and explained? (typically a K-12 issue)

Once access is gained, students have the right to have records explained and interpreted.

How is the price for copying records determined?

Calculation of the cost, however, cannot include labor charges associated with retrieval or search.

How are a record of access and consent forms used in compliance with FERPA?

They are used as methods to obtain permission to access a student’s records.

Under what circumstances is student permission for access not required?

Legitimate educational interest, juvenile justice, audit and evaluation, emergency, violent crime or non-forcible sex offense, subpoena, director information, parent or eligible student and violation of alcohol or controlled substances policies.

What is the process for amending student records?

Formal request must be made and a hearing may be held. If student is unsuccessful in hearing, he/she has a right to submit a rebuttal statement.

Under what circumstances can FERPA be used to change a grade?

The FERPA right to challenge inaccurate records does not entitle the student to challenge grades assigned for courses, unless the grade resulted from mathematical error or was not what the instructor intended.

How does the statute of limitations apply in a FERPA case?

180 days

Explain whether there is a private right of action under FERPA or under Section 1983.

There is no private right of action under FERPA (i.e., a student lacks standing to bring suit under this law). Moreover, a student may not file suit under § 1983 to claim a FERPA violation.

When FPOC receives a FERPA complaint, what happens? What authority does the office have in
resolving disputes?

FPCO notifies the college/school district of the allegations and requests a written response. It then investigates the complaint, determines whether an infraction has occurred, and notifies the parties of its decision, including instructions on how to rectify the situation if the allegation is supported.

When may college officials notify parents of the alcohol and controlled substance violations of their underage children?

When a child under the age of 21 has violated alcohol or drugs – access or permission of the student is not required.