The college years are full of new experiences. But during the late teen years and early twenties, the brain is still learning to control impulses and make mature decisions. Kids make mistakes, and sometimes those mistakes happen at college. Whether it's inadvertently copying a paper online or underage drinking on campus, a mistake on campus could leave you with a student disciplinary record that can affect your future education and career. So, it's good to understand what disciplinary records your college keeps and how they can or can't use them.
What Records Does My School Have?
Education records consist of the records about current and former students that all public and private K-12 schools, colleges, and universities maintain. They include:
- Personal information about students like names, addresses, phone numbers, birthdays, parent and guardian names and contact information;
- School information such as grades and test scores, documentation about attendance, awards, schools attended, courses taken, and degrees earned;
- Disciplinary records such as academic or behavioral complaints, witness reports, evidence collected, hearing records, and final disciplinary determinations;
- Health information such as health and shot records; and
- Special education records, including 504s and individualized education plans (IEPs).
While you and your parents typically have access to your education records, federal legislation known as the Family Educational Rights and Privacy Act (FERPA) protects your records' confidentiality. The law requires schools to keep your education records private unless you give written consent to release them. Once you turn 18 or enroll in a post-secondary institution, the protections of FERPA become yours rather than your parents, and your school needs your written consent to release your records. Of course, there are exceptions to FERPA for emergencies, public safety, law enforcement, and parental access.
It's also important to note that FERPA only applies to public K-12 schools, colleges, and universities that receive federal funds. It does not apply to private schools or post-secondary educational institutions unless they also accept federal funds.
Who Can Access My School Records?
You always have the right to access and inspect your school educational records. However, FERPA protects students' and their parents' privacy and limits other people's access to your records. FERPA typically requires colleges and universities to ask for written consent before disclosing a student's educational records. But in many cases, schools must balance the safety of students and the privacy interests of individuals. This balancing act means that schools can disclose records without your written permission in some situations.
- Health or Safety Emergency
In an emergency, FERPA does permit your school to disclose your educational records, including personally identifying information from your records, to protect the health or safety of students or other people. This exception to FERPA's general consent rule only applies to the time of the emergency and doesn't allow a blanket release of your personal information. Your school may release information to law enforcement, public health officials, and trained medical personnel in an emergency.
- Disciplinary Records
While FERPA typically protects student disciplinary records as educational records, in some situations, the school may disclose disciplinary records without your written consent. A school can disclose the final results of a disciplinary proceeding conducted against you to the alleged victim, regardless of whether the school finds you guilty.
A school can also disclose the final results of a disciplinary proceeding to anyone, not just the victim if the school finds you guilty of a violent crime or a non-forcible sex offense and determines you violated a school policy or rule at the same time.
- The Clery Act
Congress passed the Jeanne Clery Disclosure of Campus Security Policy and Campus Crime Statistics Act to provide students and their parents accurate and timely information about safety on campus so that they can make informed educational decisions. Under the Clery Act, colleges and universities must provide timely warnings of crimes that may represent a threat to students or employees' safety. The Clery Act also requires colleges to make their campus security policies public and collect and disseminate their crime data to the campus community and the U.S. Department of Education annually. The FERPA permits schools to disclose all of this information.
- Law Enforcement Unit Records
Many colleges and universities have autonomous campus police departments. Those that don't may delegate campus safety to one specific office or agency within the school. Often this office is responsible for referring potential criminal activity to local police departments. However, investigative reports and other records created and maintained by on-campus law enforcement units are not protected education records under the FERPA. Therefore, campus law enforcement can share these records with anyone, including local law enforcement agencies. They do not need student consent to do so.
While campus law enforcement units have a great deal of flexibility in determining how to implement its safety functions, the college or university must disclose to students which units perform this "law enforcement" function on campus. The school's law enforcement employees should also be designated as "school officials" with a "legitimate educational interest" under the school's FERPA notification. As a result, campus security employees may access some personally identifiable information from school records. These law enforcement officials are also required to protect this student information from disclosure under FERPA. So, typically schools maintain their law enforcement records separate from student educational records.
- Parent Disclosures
When a student enters a post-secondary institution or turns 18, the rights under FERPA become the student's rights rather than the parents' rights. But FERPA does permit schools to share certain information with parents without a student's consent.
- Schools can disclose educational records if the student is still a dependent for income tax purposes.
- Schools can disclose educational records to parents if a safety or health emergency involves their child.
- Schools can inform parents if their student under the age of 21 violated the law or school policy concerning the use of alcohol or a controlled substance.
- A school official can share information with a parent based on their knowledge or observation of the student.
- Exchange Students
FERPA allows colleges and universities to comply with requests from the U.S. Department of Homeland Security and Immigration and Customs Enforcement to comply with SEVIS, the Student and Exchange Visitor Information System. SEVIS is an internet-based system used by ICE to maintain current information on non-immigrant students in the U.S.
- Transferring Records
If you attempt to enroll at another college or university, graduate or professional school, FERPA permits your current school to transfer all of your educational records, including your disciplinary records, to that school. Your school's annual FERPA notice to students should indicate that they make these disclosures. If they fail to do so, your school must give you reasonable notice about disclosing your records unless you initiated the record transfer. You also have the right to receive a copy of everything transferred and the opportunity for a hearing.
How Long Does My School Keep My Records?
How long your school maintains your educational records, including your disciplinary records, varies by school. There is no specific federal requirement that your school keeps records for any set period. But state laws may require your school to maintain your records for a specific time. If someone submits a request to inspect your records, the school can't destroy them.
How Can I Get Access to My Education Record?
Students, or their parents if the student is under 18, have the right to inspect their education records within 45 days of making a request to inspect. If circumstances prevent the parent or student from effectively accessing the record, the school must send it to them. If the student or parent believes the record is inaccurate or misleading, it can request that the school amend the record. If the student or parent so requests, the school must give the parent or student a hearing. If the school decides the information in the record is inaccurate, misleading, or violates the student's privacy, it must amend the record. If it does not agree with the parent or student, the parent or student has a right to place their own statement in the record addressing the contested information.
Can I Expunge My School Records?
In some cases, your school may allow a process to expunge disciplinary records within your educational record. You can usually find your school's policies and expungement process within your school's student handbook and policy manual. No federal law requires that a school expunge student records, so policies vary widely from school to school.
Schools across the United States will vary widely in whether they have an established protocol for students who seek to expunge their records. For example, at Lehigh University, students can apply to have a disciplinary action expunged if they meet certain criteria such as:
- The case didn't involve academic dishonesty,
- The case didn't involve violence, threats of violence, sexual misconduct, or harassment,
- Four full semesters have passed since the conclusion of the sanctions,
- The highest level sanction imposed was probation or a warning,
- The student has a single disciplinary violation in their record.
The Lehigh Office of Student Conduct then consults with the Disciplinary Review Committee, the Dean of Students, and other campus departments, and reviews each application and determine if expungement is warranted based on the applicant's contributions to the community, their academic record, and their continued lack of disciplinary records.
If the university grants the expungement application, the school will maintain the record for seven years but not report it as a disciplinary violation. If the student is "found responsible" for another violation during that time, the expunged disciplinary action will become active again.
Many colleges and universities have a similar process for some disciplinary actions. You can also submit transcripts, letters of recommendation, and additional supplementary information for the school to consider in some cases. To have the best chance of succeeding in an expungement action, you should consult an experienced student discipline advocate or attorney.
At colleges and universities where there is not an established policy regarding the maintenance and/or potential expungement of student records, and even at schools which specifically limit expungement, an experienced attorney may in some instances be able to negotiate an agreement between the student and the school regarding record; especially records that may be subject to dispute. Some questions to be asked include: Did the school fail in its process leading to the establishment of the records? Would the school be willing to make an accommodation rather than be subject to legal action if otherwise applicable to the circumstances? There are many potential variables at play, and an experienced attorney can help guide and advise you as to what options may exist, if any, and how best to pursue such options.
Can I Expunge Campus Police Department Records?
While you may expunge school records, campus police department records of investigations may be another matter. Whether you can have a record expunged may depend on the type of campus police at your college or university.
- Campus Police
At some universities, the campus police are city or county law enforcement officers with the power to arrest individuals, file charges, and investigate criminal matters on campus. If the campus police decide to file charges against a student, they simply file charges in the county or city where the school resides, and the student goes through the county or city criminal justice process. This process is typically separate from the university or college disciplinary process.
If your school's campus police is an arm of local law enforcement, expunging your records may be an easier matter. In many states, if someone arrested is never convicted of a crime, state law allows you to expunge arrest and other related records. In some states, this process even occurs automatically. Many states also have laws permitting expungement of minor offenses after a certain period of no criminal involvement.
- Campus Security
At other schools, campus security maintains safety on campus and may not be law enforcement officers. Campus security may help investigate on-campus incidents that could also subject a student to criminal charges but must refer charges to the local police department. For example, campus security could conduct initial investigations of underage drinking or sexual assault, but they would need to involve local police for further action.
If your school maintains campus security and its investigative records separate from school or educational records, you may need to request that the university expunge those records specifically. It's a good idea to consult an experienced student discipline advisor or attorney before requesting an expungement in a more complicated case like this.
What if My School is Not Following FERPA?
An important thing to understand about FERPA is that it does not confer a private right of action on students, meaning students cannot enforce their FERPA rights in court. If you believe your school or your child's school is not complying with FERPA, you can file a complaint with the U.S. Department of Education. It is important to note that a complaint must be filed within 180 days of the violation, or 180 days of when you became aware of the violation/
Contact an Experienced Student Discipline Attorney Advisor
Having a disciplinary matter on your school record can have long-lasting consequences. You can face suspension or expulsion, removal from campus, loss of academic credits, and even the loss of a degree. A finding of responsibility, or guilty finding, can make it difficult to transfer to another college or gain graduate school admission. A school disciplinary record could even affect your future in some careers, including careers that require professional licensing such as law, medicine, nursing, and so forth. Moreover, while a school hearing is not considered a criminal proceeding, you could still face criminal charges for an incident, even if the school doesn't find you responsible. With this much on the line, you need help.
If you or your child are facing a student discipline matter at a college or university, you need an advisor experienced in student discipline matters. Student disciplinary hearings and proceedings are a specialized area of criminal defense and administrative law requiring knowledge of federal and state law and college-level defense experience.
Attorney Joseph D. Lento has spent many years advocating on behalf of students across the country. He has handled thousands of student misconduct cases and hearings at colleges and universities across the country. Whether you face academic misconduct charges, Title IX allegations, or other disciplinary charges, he can help. Contact the Lento Law Firm at 888-535-3686 to schedule a consultation today.