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Privacy, Confidentiality, Education Records
FAQs & Articles | Resources | Caselaw

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Overview

The Family Education Rights and Privacy Act (FERPA)
is a federal statute. The purposes of FERPA are twofold: to ensure that parents have access to their children's educational records and to protect the privacy rights of parents and children by limiting access to these records without parental consent.

FERPA deals with:

  • access to educational records
  • parental right to inspect and review records
  • amendment of records
  • destruction of records

FERPA applies to all agencies and institutions that receive federal funds, including elementary and secondary schools, colleges, and universities. The statute is in the United States Code at 20 U. S. C. 1232g and 1232h. The regulations are in the Code of Federal Regulations at 34 C.F.R Part 99.

Reference: Wrightslaw: Special Education Law, 2nd Edition, Chapter 9, pages 307-318.

The final regulations were published by US DOE on December 2, 2011. These regulations are effective January 3, 2012. Overview. New final regulations clarify who may receive student information for education program research and evaluation, as well as under what circumstances. Schools will be able to disclose student information if it is classified as a directory information.

FERPA Regulations. These requlations are written as frequently asked questions (FAQs) and are very easy to read. If you need to solve a FERPA issue, read through these regulations for answers to your questions.

The Department amended the implementing regulations (effective January 8, 2009) adding new exceptions permitting the disclosure of personally identifiable information from education records without consent. Analysis of Comments and Changes or Commentary was published in the Federal Register, Volume 73, No. 237, December 9, 2008. The Analysis of Comments and Changes or Commentary explains why a regulation was changed or not changed.

The most significant changes in the regulations concerned adding new exceptions permitting the disclosure of personally identifiable information from education records. At the K-12 level, parents must consent to the release of their children’s educational records that contain personally identifiable information.

Brief summary of the final regulations from US Department of Education. Section by Section analysis of the final regulations.

FAQs & Articles

FAQs about FERPA. Parents have a right to inspect and review all education records relating to their child. Read this article to learn the basics: definitions of education records, parent rights to inspect and review, test protocols and answer sheets, when records may be disclosed and to whom.

Confidentiality, Copyright Law, and Tests. Many school people erroneously believe that test materials are copyright protected so they won't let parents see these materials. Most genuinely believe this but it's simply not trueWhen a parent asks to see their child's test records, they are asking for "parental access to inspect and review." This is not a violation of Federal copyright laws.

California Decision Allows Parents to Receive Copies of Protocols. On May 24, 2005 the U.S. District Court, Central District of California in Newport-Mesa v. California Dept. of Ed. ruled that a California statute requiring copies of test protocols to be provided to parents of special education students falls within acceptable "fair use" under federal copyright law. The publishers of the Weschler IQ test and of the Woodcock-Johnson tests (who, because they, if anyone, had the right to complain about copyright violations) intervened in this case. The Court held that the parents were entitled to a copy of their child's test protocols.

The National Association of School Psychologists has been proactive in regard to this issue. See Test Protocols and Parents Rights - to Copies. NASP Communique 34-1, 2005.

Copying Protocols to Parents: Clarification of FERPA Requirements from the National Association of School Psychologists. FERPA, IDEA and Section 504 all require that parents be given access to school records (including test protocols). NASP Communiqué, Vol. 31, #1 September 2002.

Parent Observations v. Student Confidentiality - "Do I have a right to observe the class before agreeing (or not agreeing) to a placement for my child? The special ed director said I cannot observe the class because of confidentiality issues with the other children." Pete and Pam answer these questions and offer strategies to help resolve misunderstandings about confidentiality issues.

Confidentiality: Who Should Have a Copy of the Child's IEP? Answers to questions about records and confidentiality.

Privacy: Child Suspended, School Refuses to Provide Video. The school suspended a child because of behavior that was documented on a video; now refuses to allow parents to see video, citing privacy issues for other students. What can the parents do?

Bullying, Discipline, and Confidentiality: Who's the Victim?. A special education teacher asked a question about a student’s right to confidentiality after being disciplined by the school.

Can Parents Observe Children's Classrooms and Placements? Some schools take the position that parents and/or their representatives cannot observe a child in the classroom because this would violate the privacy of other children. Is this right?

Should Kids Use Cameras or Recorders to Monitor Their Teachers? We NEVER recommend that parents ask, allow, or encourage their children to monitor their teachers.

Confidentiality is Not the Issue, Discimination Is. Just when you think you've heard it all...

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Resources

FERPA Complaint: Below you will find four FERPA decision letters from the US Department of Education (2005-2008) regarding a parent's right to inspect and review education records.

1. Letter to Baker (2005) is explicit regarding the definition of sole possession documents (i.e., personal "notes" of school staff), what they are and are not. See page 5 & 6 of Letter to Baker (2005).

2. Letter to Baker (2006) discusses the issue of the school's attempt to charge a fee for searching for student records.

3. Letter to Husk (2006) references parent rights under FERPA to view:

  • student protocol answer booklets (p.7)
  • test manuals (when applicable-p.3)
  • clinician therapy logs and notes (p.6-7)
  • and correspondence and emails -- without retrieval fees (p.8+)

Clarifies "sole possession" documents are not clinician notes & observations (p. 3, 6) which are student records. Summary/order (p.9-10)

Clarifies all of the above are Student Records. This should enable parents to request copies under applicable Federal IDEA, your state school records law, or school district policies.

4. Letter to Husk (2008) orders the district to ensure this doesn't happen again and requires the district to have procedures in place to inform all staff (present & future) of these issues to ensure compliance with FERPA.

Read and compare all 4 letters (single file 6.3 MB).

Letter to Carroll Independent School District (TX) re: Destruction of Student Test Data (FERPA Online Library, September 2005). Letter of technical assistance to ensure a sufficient understanding of FERPA requirements to avoid future violations.

Joint Guidance on the Application of the Family Educational Rights and Privacy Act (FERPA) and the Health Insurance Portability and Accountability Act (HIPPA) to Student Health Records. The purpose of this guidance from DOE and DHHS is to explain the relationship between FERPA and the HIPAA Privacy Rule and how these two laws apply to records maintained on students. (November 2008)

Parent's Guide to the Family Educational Rights and Privacy Act: Rights Regarding Children's Education Records

Disclosure of Information from Education Records to Parents of Postsecondary Students

Model Form for Disclosure to Parents of Dependent Students

Frequently Asked Questions about FERPA - this publication from the U. S. Department of Education will answer many of your questions about rights and responsibilities under FERPA. For example FERPA defines "directory information" as information contained in a student's education records that would not generally be considered harmful or an invasion of privacy if disclosed.

Model Notice for Directory Information - FERPA requires school districts (with certain exceptions) to obtain your written consent prior to the disclosure of personally identifiable information from your child's education records. However, the school district may disclose appropriately designated "directory information" without written consent, unless you have advised the District to the contrary. Learn more.

FERPA Memorandum: Access to Test Protocols and Answer Sheets. In 1997, the the Family Policy Compliance Office of the U. S. Department of Education issued this memorandum about the parent's right to have access to their child's test protocols and answer sheets. The parent's right to "inspect and review" education records includes test protocols and answer sheets. FERPA does not create an exception for "copyrighted materials."

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Caselaw

On February 19, 2002, the U. S. Supreme Court reversed a decision by the U. S. Court of Appeals for the Tenth Circuit and held that peer grading does not violate FERPA. (534 U. S. ____ (2002)) The citation is Owasso Independent School Dist. No. I-011 v. Falvo, 122 S.Ct. 934, 534 U.S. 426.

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Last revised: 11/07/13
Created: 01/01/02

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