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FERPA: Family Educational Rights and Privacy Act

FERPA: Family Educational Rights and Privacy Act
PJ Winters, EdD
June 10, 2021

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Introduction

I appreciate the opportunity to share with you the Family Educational Rights and Privacy Act (FERPA). It is important not only for educators but for people that work in public schools to understand how the law relates to what they do in their everyday practice. I always tell people working for schools to follow the policies and procedures of their school district. However, it helps if you know the law as it helps you ask better questions as a practitioner, especially if you hear something that you think might be a violation of FERPA. You will want to bring that forward to someone so that you can protect yourself and the school from complaints through the FERPA process.

Presenter Information 

  • Dr. PJ Winters
  • 21 years in education in Oklahoma and Texas, P-16.
  • Currently Director of M.Ed. Programs and Associate Professor at East Texas Baptist University in Marshall, TX.
  • DISCLAIMER! I am not an attorney. I am an informed educator who teaches this material to graduate students. This training is not meant as a substitute for legal advice.

This is some information about me. I am not an attorney. I am an informed educator that teaches this material to graduate students. This talk is not meant as a substitute for legal advice. This is simply how I interpret the law as it relates to educational records and record keeping.

What is FERPA?

  • Federal law passed in 1974
  • FERPA protects student records
  • Gives parents and eventually, students (eligible students) access to educational records
  • Students become eligible at their 18th birthday when the transfer of the rights to them

This is the big question that we are going to try to answer today. Why do we need such a law at the federal level? Back in the 1800s, schools started keeping registers of enrollment and attendance for students. At that time, the educational record was born. This educational record accumulates information from the time the child enters school until they are no longer involved in the educational system.

According to some people, it can destroy the people that it was meant to protect. This record was created to be efficient, but there are times when this process becomes quite inefficient. We live in an age where we want access to information quickly and can do so with smartphones and computers. To be honest, snooping in our society has become the norm. People seek out information about people, even those they do not know. Open TikTok if you do not believe me. Many TikTok videos show people who they feel have wronged them. This is the current culture. This makes protecting students' records just as important now as it was back in 1974 when this federal law was passed.

In the seventies, you could see a personal record if you were official-looking or flashed a badge. If the school secretary believed that a person was part of a government process, they could most likely get access to whatever record they wanted, including things like psychiatric evaluations and medical records. And, it was unlikely that parent or student would even know that this information was being shared. In addition, a parent might be refused access to all of that information due to confidentiality. "No, that is confidential and for the use of the school only." Decisions were being made without parents' permission, and parents also had no access to the information. An example might be a father learning during a routine parent-teacher conference that the teacher commented that his son was interested in girls. We would look at that today and say, "That's not pertinent to his education." However, back then, there was not a lot that we could do to remove that type of information from the record.

The author of FERPA served on the New York City Board of Education's Committee to revise student records. He cited several things as to why FERPA was necessary. These are readily available for you to read. I am going to go through some real-life examples. A secretary at a private tutoring agency called a public junior high school to inquire about a child's reading level. The principal opened the child's record and gratuitously informed the unseen caller that the child had a history of bedwetting. In addition, the mother was an alcoholic, and a different man slept at the home every night. When the disclosures were reported to the Board of Education, the principal denied the incident even happened, and his superiors backed him up. This obviously was an invasion of privacy. Another example was a teacher getting a summary of a student's past academic year with comments such as frequently absent, truant, stubborn, very dull, verbal only about outside topics, states irrelevant facts, can barely read, a huge accomplishment to get this far, etc. As a former principal, these comments shock me. Lastly, there was a Black father who worked for a school system. He had a teacher show him his bright daughter's confidential record. In that record, there was a critique of how his own community activities as a "Black militant" were "causing his daughter to be too challenging in class."

This is the behavior that FERPA was meant to curb; showing records to people that did not really have an educational need to know and people putting down biased opinions about other people in an official record. The Family Educational Rights and Privacy Act is a Federal law that protects the privacy of student educational records. This went into effect in 1974 and applied to public and private schools that received any funds from the U.S. Department of Education. This includes, but is not limited to, public school districts, local school districts, charter schools, and higher education institutions.

It is designed to protect these records from people who do not have an educational need to know and gives parents and eligible students, the right to control who sees what is in their educational records. Parents get control of this until the child's 18th birthday. At that point, the rights are "mostly" transferred to the child. I put in that caveat because if the 18-year old is still carried on a tax return as a dependent, parents can access some of that information. As a worker in higher education, we deal with students over 18 all of the time. As long as the 18-year old has given a parent permission, we share that information with parents.

What Rights Do They Have?

  • Right to inspect and review records maintained by the school
  • Right to request a school correct records they believe are incorrect
  • Right to give permission before schools disclose some information about the student

What rights do the parents have? First, they have the right to inspect and review records maintained by the school. This includes grades, testing, and anecdotal notes. It could be in the official school record or a record that a teacher or therapist keeps on the child. It is important that when a record is going to be kept, we use only facts and not any disparaging opinions. Obviously, as a professional, you will have some opinion based on your assessment, but it should be based on data and not simply your gut feelings about things. It also should not include inflammatory language that is going to cause parents to raise a stink.

These rights apply to both custodial and non-custodial parents unless a court has ordered that the non-custodial parents do not have these rights. The school must have a court order on file. For example, when I was a principal, I had to copy a student's report card every six weeks and send it to her father in North Carolina because he wanted to see it. We will talk about the copying issue later because the law says, "Review and inspect." It does not use the word copy. However, he was the non-custodial parent and had rights to every single educational record that that school kept on file on his child.

Parents have the right to request a correction or amendment to the educational record that he or she believes is incorrect, misleading, or violates the right of privacy. Generally, though, a FERPA amendment process is not used to do things like challenging a grade, a disciplinary decision, or any other substantive decision made by a school official. Those things can be handled locally with local school districts and parents. This does not go through the FERPA process. They have no interest in determining whether your child needed an A or a B in a class. The school has the right to refuse to make the change because the law says that the parent only has the right to request the change. If the school decides not to make the change, then the school must inform the parent or eligible student of their right to a formal hearing on the matter. The parents or students are allowed to have representation by their attorney at their own expense at the hearing. They must be provided with the opportunity to present evidence at the hearing. The hearing's decision must be written and based solely on the evidence presented. Even after the hearing, the parent's request for amendment of the record could be denied. If that is the case, the parent or eligible student has a right to include a statement in the record why they believe that information contained in the education record is incorrect, misleading, or violates their right to privacy. They could even write a statement that says why they disagree with the hearing decision or both. Even if a parent is denied the right to have it officially changed, they can still have their voice/statement put in that record not to be removed for as long as that record exists.

It is also important to note that under FERPA, a school is not generally required to maintain a particular education record or records that contain specific information. They are only required to provide the privacy protections for the education records that they do maintain. Unless there is an outstanding request by an eligible student to inspect and review education records, FERPA does permit the school to destroy records without notifying the student.

Right to Inspect and Review Records

  • These are records maintained by the school. They could include:
    • Grades
    • Transcripts
    • Class lists
    • Course schedules
    • Health records
    • Financial records
    • Discipline files
    • Supplementary service records
  • Schools are not required to provide copies of the records for inspection.
  • Must provide for inspection within 45 days of receipt of the request

I have listed a few things that are part of FERPA, things like grades/report cards. Grades are recorded on the permanent record. There are also transcripts from any school that the student has attended. Class lists often include the names of other students. We will talk about this a little later. This class list is considered directory information. This may be eligible to be released under FERPA. Parents have the right to know what classes their child is going to and when. Health records like visits to the nurse or outside educational evaluations like with a psychiatrist are also included. Financial records are usually things like financial aid, mostly at the higher education level. We do not see a lot of financial records in public schools. Disciplinary files are also included. Lastly, supplementary service records fall under FERPA, including records from social work, counselors, occupational therapy, et cetera.

FERPA does not require schools to provide an eligible student with access to academic calendars, course syllabus, or general notices and announcements. There is no need for them to retain that type of information in the educational record. Note that under FERPA, schools are not required to provide information that is not maintained, nor is it required to create an educational record in response to an eligible student's request. For example, they are not required to provide a student with updates on their progress in a course unless that report already exists. So, those midterm progress reports that parents often get are not required for the school to maintain. However, if they maintain it, it then becomes part of the record.

Education records may include things like date and place of birth, parents and/or guardian addresses, and where parents can be contacted in case of an emergency. Special education records are also a part of that. Schools must provide the records for inspection within 45 days of the receipt of the request. Of course, we hope that the request is in writing to have a date/time stamp. They have 45 days from the date of this request. Again, many will want the information quickly, but the school has a month and a half to get that information for parents to be able to inspect it. In my experience, schools typically provide that information sooner. However, if a parent has been particularly demanding about something, I have seen schools take every day that they have. I am not saying they should, but it does happen.

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pj winters

PJ Winters, EdD

Dr. PJ Winters is the Director of MEd Programs and Associate Professor at East Texas Baptist University in Marshall, Texas. In his over 20 years in education, Dr. Winters has served as a teacher, assistant principal, principal, and college professor spanning all grade levels, P-16.



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