FERPA's Usual Application
The federal Family Educational Rights & Privacy Act applies broadly to more than just disabled students and disciplinary proceedings. But the Act, frequently referred to by its acronym FERPA, can be especially helpful for disabled students facing disciplinary proceedings. Educators and even students and their parents generally know that FERPA protects the privacy of student education records. FERPA generally requires teachers and school administrators to refrain from sharing a student's education records. FERPA is why teachers ordinarily take pains to keep the grades and other assessments of one student's work from the eyes of other students. Students may share their own grades as they wish. But long gone are the days when schools posted names and grades on bulletin boards for anyone to see. Teachers and school administrators just don't ordinarily share confidential academic information of one student with other students, parents, or the public, unless the parent or student requests and consents in writing.
FERPA and the Discipline of Disabled Students
FERPA, though, does a lot more than just keep grades, grade point averages, and similar academic indicators confidential. When a student has a disability qualifying for placement and services under the Individuals with Disabilities Education Act or reasonable accommodations under Section 504 of the Rehabilitation Act of 1973 and Title II of the Americans with Disabilities Act, FERPA generally requires the school to maintain those disability records as confidential. And when a school charges a student with misconduct and imposes discipline, the student's discipline records are also confidential. Records of disability or discipline can be embarrassing to a student, especially when others may misunderstand, misconstrue, and misuse that information. School disciplinary charges can also attract notorious attention. FERPA confidentiality rights can thus be especially important to the disabled student facing disciplinary charges. Yet FERPA gives the parent or student other powers, including the power to access, review, and correct student records. Know and invoke those FERPA rights to minimize the undue public impact of disciplinary charges. Retain national school defense attorney Joseph D. Lento and the Lento Law Firm student defense team if you need help with FERPA rights relating to a disciplinary proceeding involving you or your disabled student.
FERPA Provisions
The Family Educational Rights & Privacy Act is codified at 20 U.S.C. §1232g with supporting regulations at 34 CFR Part 99. FERPA applies to all schools that receive federal funding, including both public and private schools. Only private schools not receiving federal funding avoid FERPA obligations. Under FERPA's own terms, the student's parent holds the rights that FERPA guarantees until the student turns eighteen or enters a post-secondary program. The adult student then holds the right rather than the student's parent. Elementary and secondary schools thus generally deal with the student's parents over FERPA rights, other than for eighteen-year-old secondary students, while colleges and universities turn to the student, not the student's parents or guardians, for the student's consent, access, correction, or other exercise of FERPA rights. Schools subject to FERPA must give annual FERPA notices to parents or students. The FERPA notice ensures that parents or students are aware of their FERPA rights. The FERPA notice doesn't have to be a special and costly mailing. It may instead be a statement in an online student handbook, newsletter article, parent-teacher organization bulletin, or similarly public and effective notice. FERPA annual notices are not ordinarily issued in school disputes involving disciplinary charges against disabled students.
Disclosing Directory Information Under FERPA
FERPA permits schools to disclose so-called directory information without parent or student consent. Directory information includes the student's name, address, telephone number, date of birth, place of birth, honors and awards, and dates of school attendance. The person making the directory information request need not justify the request, but employers, other schools, scholarship foundations, and others interested in confirming the student's identity, attendance, and honors or locating the student for contact are typically the ones making directory requests. School officials who intend to disclose directory information must notify the parent or student sufficiently in advance of the disclosure to allow the parent or student to object and direct that the school not make the disclosure. A parent of a student facing disciplinary charges, or the adult student handling those charges without a parent's involvement, may wish to invoke FERPA's directory challenge if school officials notify of a directory request from media representatives or others who might publicize the charges or from solicitors hoping to offer related services to the student. A FERPA directory objection can reduce and discourage the distracting involvement and interest of others. The parent or student may wish to notify disciplinary officials in advance not to comply with directory requests, in the event that those officials are unaware of their FERPA obligation to first give reasonable notice.
FERPA Exceptions
FERPA permits school officials to release education records without parent or student consent under some circumstances. FERPA regulations at 34 CFR 99.31 list those exceptions to FERPA confidentiality. FERPA's exceptions can be important in school disciplinary cases involving disabled students. The key FERPA exception for disability and disciplinary cases is that FERPA records are available to school officials with a legitimate educational interest in those records. Thus, disciplinary officials investigating the relationship of a protected disability to the alleged misconduct or deciding whether the misconduct was a manifestation of a protected disability, should ordinarily have access to the accused student's disability and other education records. Other parties to whom the school may ordinarily release education records without consent, some of whom may be involved in disciplinary or disability proceedings, include:
- 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 the school
- Accrediting organizations
- Parties with a judicial order or lawfully issued subpoena
- Appropriate officials in cases of health and safety emergencies
- State and local authorities, within a juvenile justice system, under law
FERPA Confidentiality of Disability Records
FERPA protects not only academic records but also a disabled student's special services records and other disability records. FERPA regulation 34 CFR 99.3 defines protected education records broadly to include records that an education agency or institution maintains that include personally identifiable information directly related to a student. While FERPA provisions do not specifically mention disability services records, the Individuals with Disabilities Education Act (IDEA) provides for confidentiality of those records while referring to FERPA protections. FERPA and IDEA thus work together to ensure the privacy and confidentiality of a student's disability records. If your elementary or secondary student faces disciplinary charges relating to your student's disability, you should rely on FERPA and IDEA protections for the confidentiality of disability records.
FERPA Confidentiality of Disciplinary Records
Given the broad definition of education records under FERPA regulation 34 CFR 99.3, FERPA privacy protections extend not just to disability records but also to a student's disciplinary records. That protection includes not only official records of disciplinary charges and discipline but also witness statements, investigation reports, photographs, emails and text messages, and other information that the school collects and maintains relating to the disciplinary proceeding. FERPA protections even extend to so-called unofficial files of disciplinary or other school officials. The key question is not where or how the school maintains the file but instead whether the record includes personally identifiable information directly relating to a student. FERPA does in 20 USC Section 1232g(h) expressly permit the school to disclose disciplinary records to teachers and school officials “who have legitimate educational interests in the behavior of the student.” But that exception simply reinforces FERPA's primary exception that the school can use education records for any other legitimate educational interest. Insist that your student's school maintain disciplinary records as confidential in your student's disciplinary proceeding relating to your student's disability.
FERPA Confidentiality of Health Records
According to joint guidance from the Department of Health & Human Services and the Department of Education, FERPA confidentiality generally applies to student health records the school maintains as part of the student's education record. In the ordinary course of developing and implementing an individualized education plan (IEP) for a disabled student, an elementary or secondary school may well receive and hold health records such as those diagnosing the student's disability and recommending support services. Thus, FERPA protections can be critical to maintaining the disabled student's health privacy in disciplinary proceedings involving the student's disability. In contrast, Health Insurance Portability & Accountability Act (HIPAA) privacy protections do not generally apply to student health records maintained by the school. Parents should generally look to FERPA, not HIPAA, to ensure the confidentiality of their disabled student's health records relating to a disciplinary proceeding.
Accessing Your Own Records Under FERPA
FERPA requires that school officials allow a student, or in the case of an elementary or secondary student under age eighteen, the student's parent, access and inspect the student's education records. FERPA access rights can gain you information that can exonerate your disabled student from disciplinary charges, show the relationship of the charge to your student's disability, and mitigate any sanction. The FERPA regulation 34 CFR 99.10 requires the school to grant the access request within a reasonable time but not more than forty-five days after the request. If the student or parent is unable to make it to the school to inspect the records in person, the school must copy and send the records for review. The school must not destroy any education record while an access request is outstanding. That restriction can be especially helpful in defense of disciplinary charges against a disabled student, where school officials may find an interest in hiding or destroying exonerating record evidence. The same FERPA regulation further requires the school to “respond to reasonable requests for explanations and interpretations of the records.” Students and parents rarely exercise that right, but keep in mind that if you do not understand the record's nature or contents, you may get the school's explanation and interpretation under FERPA. FERPA access rights can make a significant difference in disciplinary proceedings. Retain national school defense attorney Joseph D. Lento if your student's school refuses to comply with FERPA access rights relating to a disciplinary proceeding.
Correcting Errors in Education Records Under FERPA
FERPA offers another feature that can help a disabled student facing disciplinary charges. FERPA provides that the student may correct errors in education records. FERPA regulation 34 CFR 99.20 states that when “a parent or eligible student believes the education records relating to the student contain information that is inaccurate, misleading, or in violation of the student's rights of privacy,” the student or parent may request that the school amend the record. A request does not guarantee a correction. Instead, FERPA provides that the school must decide whether to amend the record within a reasonable time after the request. FERPA corrections, though, can reform an otherwise inaccurate and damaging disciplinary or disability record. The favorable outcome of disciplinary proceedings depends on more than just whether the school imposes discipline. A favorable outcome also depends on what the permanent education record reflects as to any discipline. If, for instance, the student suffers no discipline, but the record reflects discipline or even unresolved disciplinary charges, the student may face future problems gaining entry into college, vocational, or other programs. The record can be even more important than the discipline because the record persists.
Hearings on Denied FERPA Correction Requests
FERPA further provides that if the school does not amend an inaccurate or misleading record as the student or parent requested, the school must inform the parent or student that a hearing is available to challenge the denial. FERPA regulation 34 CFR 99.21 provides the terms for that correction hearing. The hearing must enable the student or parent “to challenge the content of the student's education records on the grounds that the information contained in the education records is inaccurate, misleading, or in violation of the privacy rights of the student.” The student or parent may, for instance, supply documentary or testimonial evidence at the hearing of why and how the record is inaccurate and what would be an accurate correction. The school must amend a record that it determines at hearing is inaccurate. The school must also notify the student or parent of the content of the record's correction. A FERPA correction hearing can both correct a damaging inaccurate record and inform the disabled student or the student's parent of the school's account of the disciplinary proceeding.
Supplementing an Arguably Inaccurate FERPA Record
Even if the school refuses to correct an arguably inaccurate record after a FERPA hearing, FERPA provides one further right that can provide a disabled student with meaningful relief relating to disability or disciplinary records. FERPA authorizes the parent or student to supplement the arguably inaccurate record with a corrective or explanatory statement. Under FERPA regulation 34 CFR 99.21, the school must “inform the parent or eligible student of the right to place a statement in the record commenting on the contested information in the record or stating why he or she disagrees with the decision of the agency or institution, or both.” If the student or parent exercises that right and submits the corrective statement, the school must maintain the statement with the arguably inaccurate record. The school must also disclose the statement anytime it discloses the arguably inaccurate record. This FERPA right to supplement a disability or disciplinary record can go a long way toward diminishing or eliminating the future harm a disabled student may suffer from the release of damaging and arguably inaccurate disciplinary records. Retain national school defense attorney Joseph D. Lento to assist you with the correction and supplementation of inaccurate FERPA records.
Addressing Unauthorized Record Disclosures Using FERPA
With all of the above privacy protections, FERPA can be a powerful tool for addressing unauthorized record disclosures. You may see or anticipate school officials violating FERPA by disclosing your education records or the education records of your elementary or secondary student in a disciplinary proceeding relating to a disability. If so, retain a skilled and experienced school defense attorney to invoke FERPA to address, end, and correct the unauthorized disclosure. Your retained school defense attorney can put school officials on notice of specific FERPA rights and the school's unintentional, careless, or deliberate violation of those rights. Your attorney's demand that the school cease and desist from FERPA violations should guide and inform school officials effectively. Retain national school defense attorney Joseph D. Lento to help you address unauthorized record disclosures using FERPA.
Enforcing FERPA Obligations
FERPA requires schools to take reasonable steps to prevent unauthorized disclosures of education records. School officials nonetheless violate FERPA privacy rights in certain instances. Those violations can occur around disciplinary proceedings involving disabled students with disability, disciplinary, and other school officials all involved, and other students and parents curious or concerned about the rumored proceeding. In theory, a FERPA violation could lead the Department of Education's Family Policy Compliance Office, the agency charged with FERPA enforcement, to recommend withdrawal of federal funding. Aggrieved students and parents can direct complaints of FERPA violations to that agency. Yet, according to the National Center for Education Statistics, no school to date has lost federal funding over FERPA violations. And the Supreme Court held in Gonzaga University v. Doe that individual students and their parents have no private cause of action to enforce FERPA rights in the courts. Yet you or your student may have common law privacy rights that a FERPA violation implicates, enforceable in the civil courts. Thus, your primary recourse for enforcing FERPA obligations is to retain a skilled and experienced school defense attorney to demand that the school respect those rights.
Disclosures Based on Personal Knowledge
In many disciplinary cases, school officials will have made direct observations relating to the matter so that they have personal knowledge of your student's disability and disciplinary matter. FERPA doesn't just restrict the release of education records. FERPA also limits when school officials may share personally identifiable information directly related to your student from their personal knowledge. When the school official is making an official determination that the school will maintain in the student's education record, the school official may not release information based on personal knowledge gathered in that official role. A teacher entering a grade may not, for instance, share the grade outside of FERPA restrictions simply because the teacher evaluated the student's work firsthand. The Department of Education interprets this principle to mean that “under FERPA a principal or other school official who took official action to suspend a student may not disclose that information, absent consent or an exception under § 99.31 that permits the disclosure.” You should insist and expect that school disciplinary officials will not disclose disability or disciplinary records based on their personal knowledge gathered in their official role.
What's at Stake in FERPA Disputes Involving Discipline
FERPA rights can be especially significant to a successful outcome of disciplinary charges against a disabled student. Disabled students facing disciplinary charges often need to do more than just beat the charges. Because their disabilities can involve sensitive health, capacity, and accommodations issues, disabled students can have especially strong interests in their reputations and privacy. Privacy breaches in a disciplinary proceeding against a disabled student can lead to embarrassment and mental and emotional distress, further harming the already challenged student. Be sure to protect your privacy interests or the privacy interests of your student. Know the FERPA restrictions. Get the help of a skilled and experienced national school defense attorney to enforce FERPA rights.
National School Defense Attorney for FERPA Issues
National student defense attorney Joseph D. Lento and the Lento Law Firm‘s student defense team are available for the aggressive and effective defense of disciplinary charges against disabled students, including in cases involving significant questions over FERPA rights. Attorney Lento has helped hundreds of students nationwide successfully defend and defeat disciplinary charges. Attorney Lento has the specialized knowledge, sensitive skills, passionate commitment, and substantial experience necessary to make a difference in your case or the case of your student. Call 888-535-3686 for a consultation now or use the online service.
