The Family Educational Rights and Privacy Act, or FERPA, is a Federal law that protects the privacy of students’ education records and access to those records, and applies to schools that receive federal financial assistance under the U.S. Department of Education, including elementary and secondary schools as well as postsecondary schools. FERPA prohibits the disclosure of a student’s education records to others without consent from the parents or eligible student. Most private elementary and secondary schools are not subject to FERPA as they do not generally receive federal funding. However, most private colleges and universities receive federal funding and, as such, are subject to FERPA.
A. What is an education record?
The phrase “education records” is defined under FERPA as records, files, documents, and other materials containing information directly related to a student, which are maintained by an educational agency or institution or by a person acting for such agency or institution. Education records can be handwritten or typed notes, computer generated documents (such as transcripts and grade reports), emails, letters, audiotapes or videotapes. However, information about a student that is obtained by a teacher through personal knowledge, observation or conversations with others is not an education record and is not protected from disclosure by FERPA. Student health records may or may not be subject to FERPA depending upon the circumstances. Health records are not educational records if they are not shared with others outside the clinical setting (eg. teachers or administrators).
B. Parent and Student Access to Education Records and Disclosure of Education Records
FERPA allows parents and guardians the right to inspect and review their child’s records maintained by the school as long as the student is under the age of 18. When the student turns 18 years old or begins attending a postsecondary institution, the student has all the rights the parents previously had, is then eligible to access his/her own records and may allow or prevent others to access his/her education records. Pursuant to FERPA, upon request from a parent or eligible student, a school must provide access to these records to the parent or eligible student within 45 days after receiving the written request.
Additionally, the eligible student may prevent his or her parents from having access to these records and may prevent disclosure of the records to others, subject to some exceptions discussed below. However, a school may disclose an eligible student’s education record to the student’s parents if either parent has claimed the student as a dependent on the parent’s most recent income tax returns. If the parent or eligible student consents to the release of the education record to others, the school generally requires the student to sign a waiver or release of FERPA rights and, as a matter of practice, a school should not release education records without such written consent.
Generally, in order for a school to release a student’s education records or personally identifiable information from an education record to a third party, the school must have prior written permission from the parent or eligible student. However, FERPA allows schools to release information without consent in the following situations:
- To school officials with a legitimate educational interest (the terms “school official” and “legitimate educational interest” must be defined by the school in its annual notice to parents and students);
- To schools to which a student is transferring or seeks to enroll;
- To state or federal officials for audit or evaluation of educational programs;
- To those involved in determining financial aid to a student;
- To organizations conducting certain studies for or on behalf of the school;
- To accrediting organizations;
- In order to comply with a judicial order or lawfully issued subpoena;
- To officials (or parents of an eligible student) in cases of health and safety emergencies;
- To parents of a student at a postsecondary institution regarding the student’s violation of drug or alcohol policies or laws, if the student is under the age of 21 and has violated the college policy regarding drugs or alcohol; and
- The results of a student’s disciplinary hearing may be released to the alleged victim of the student’s crime of violence or non-forcible sex offense.
In addition, schools may disclose “directory information” without parental consent, such as a student’s name, address, email address, telephone number, date and place of birth, grade level, enrollment status, honors and awards, dates of attendance, and field of study. However, the school must inform parents and eligible students about the types of information it considers “directory information,” the school’s intent to release of such information, and the parents’ and/or student’s right to restrict disclosure of this information, though this notice can be given publicly, such as on a school website or catalogue. Schools must give parents and eligible students a reasonable amount of time to prohibit the school from disclosing this information.
Information that cannot be released by a school without prior written consent includes student identification numbers, social security numbers, grades, test results or scores, GPA, credits taken, course information, race, ethnicity, nationality or gender. Schools cannot publicly post grades, such as on a website, by the student’s name or full student ID number.
Schools must inform all parents and eligible students of their rights under FERPA. The notification must be in writing and sent annually to parents and students.
C. Amendment of education records
FERPA gives parents/guardians or eligible students the right to request that the school correct any records they believe are inaccurate or misleading. The school may deny the request, but the parents or eligible student then has the right to a formal hearing to decide the matter. If the school still refuses to amend the student’s record, the parent or eligible student then has the right to include in the student record a written rebuttal to the school’s allegedly misleading or inaccurate statement(s). This procedure is not meant to be used to challenge a grade, an opinion of a teacher or staff member, or a substantive decision by the school.
FERPA permits destruction of education records without notice to the student. This is contrary to state law under the Massachusetts Code of Regulations regarding retention and destruction of records, which states that records must be kept for seven (7) years, though a student’s transcript must be kept for 60 years pursuant to state law.