Part II: The Rights of Parents and Students under FERPA
Posted by Claire E. Parsons
To really understand how FERPA affects government agencies, you need to first consider it from the prospective of the individuals it is designed to protect: parents and students. Under FERPA, students or the parents of minor students have three distinct rights with respect to their or their child’s educational records. First, Department of Education implementing regulations clearly provide that students or their parents have the right to inspect their own or their minor child’s educational records. 34 CFR 99.10-99.12. Under the regulations, upon receiving a request for records, subject schools must respond within a reasonable time—no more than 45 days. 34 CFR 99.10(b). Like other open records laws, schools are permitted to charge a fee if copies of records are requested, but the fee cannot be so high that it prohibits parents or students from exercising their right to review the records. 34 CFR 99.11(a). In addition, schools are not permitted to charge a fee for merely retrieving the student records for review. 34 CFR 99.11(b).
The second student/parent right under FERPA is privacy. Under FERPA, school districts are not permitted to release student educational records which contain “personally identifiable information” to third parties unless it has written student or parental consent or an exception applies. 34 CFR 99.30(a); 34 CFR 99.31. The exceptions to the release of records under FERPA are narrow and pre-ordained and will be discussed in more detail in a subsequent post. Because consent is required before the release of most educational records, students and parents retain a great degree of control regarding the people who will be permitted to access their or their child’s educational records.
“Personally identifiable information” is a term of art under FERPA and it includes most “identifiers” that you would expect, such as name, date of birth, social security number, address, place of birth, or mother’s maiden name. 34 CFR 99.3. It also precludes the release of information that common sense would tell you not to release. In other words, the regulations state that no educational records can be released if the agency could reasonably expect that the student’s identify could be determined. Id. For example, if it is commonly known that a school has only one HIV-positive student, a school district could not reveal information without appropriate consent indicating that an HIV-positive student in the school was suspended. 73 Fed. Reg. 74 (2008).
Third, FERPA allows students or their parents to challenge the content of information in student records. 34 CFR 99.20. This does not mean that students will be allowed to change their answers to tests or improve their homework assignments post hoc. Instead, it allows parents or students to challenge information which is “inaccurate, misleading, or otherwise in violation of the privacy rights of a student.” 34 CFR 99.20(a). This means generally that students or parents have the right to correct errors in their records or significant invasions into their personal privacy. But parents and students have no right under FERPA to modify educational records that they do not like. For example, parents may use FERPA to challenge records inaccurately reflecting which disciplinary action the school actually took, but they may not use FERPA to challenge records documenting a disciplinary action with which they merely disagree. Letter re: Billings School District No. 1, 10 FAB 18 (FPCO 2006).
To challenge information in an educational record, all a parent or student must do initially is ask. The first level of a FERPA records dispute is an informal review by the school. If the initial request is denied, then FERPA provides parents and students the right to request an administrative hearing. 34 CFR 99.21. This administrative hearing is relatively informal, and may be heard by school employee so long as he or she has no vested interest in the outcome. 34 CFR 99.22(c). Parents, however, have the right to present proof and retain counsel to represent them. 34 CFR 99.22(d). If the student or parent loses at the hearing, their options for appeal are limited. They can file a complaint with the FPCO, the Family Policy Compliance Office, the agency charged with administering FERPA, or they can submit “explanatory comments” to be included in the student’s file. 34 CFR 99.21(b)(2). These explanatory comments essentially ensure that a parent or student has the right to include their side of the story so that future reviewers of the student’s file understand the meaning of the information they find objectionable.
In sum, students and parents have three primary rights under FERPA: (1) privacy; (2) access; and (3) limited content control. Coming next, we’ll explain the practical ways in which FERPA affects schools. Keep your eyes peeled for Part III: How Does FERPA Affect Schools?