Parental and Student Due Process Rights Under FERPA: A Basic Primer

We are all familiar with that old adage: “you know this will go down on your permanent record.”  Suppose you have a dispute with your local public grade school, middle school, or high school about what the school has chosen to include in your child’s educational record. Or, you are a college student and have the same concern about what your institution is including in your record.

Well, the Family Educational Rights and Privacy Act (“FERPA”), and its implementing regulations, afford you the legal ability to view and challenge that record. 20 U.S.C. §1232g; 34 C.F.R. §§99.1 et seq.

Enforcement of Access

You have the right to access to view your file.  20 U.S.C. §1232g(a)(1)(A).  A school must provide you that access within 45 days of your request at the latest.  34 C.F.R. §99.10(b).  Although not required by the Federal Regulations, it is best practice to put your request in writing.

A problem can occur at this stage.  For example, the school might forbid you access, or the school wants to charge you fees for searching for, retrieving or allowing inspection of the educational records.  While the school can charge for the actual copies, it may not charge fees for search, retrieval or inspection. 34 C.F.R. §99.11.

If you are denied timely or complete access, the most recent Supreme Court discussion on the matter leads to the conclusion that one does not have a private cause of action for a school’s violation of FERPA.  Gonzaga Univ. v. Doe, 536 U.S. 273, 290 (2002); Owasso Indep. Sch. Dist. No. I-011 v. Falvo, 534 U.S. 426, 431 (2002).

You, however, may file a written complaint with Secretary of the United States Department of Education. 34 C.F.R. §99.63.  The Secretary of Education has full power and standing to enforce FERPA.  20 U.S.C.  §1232g(f).  The Secretary is vested with broad powers for violations, including voluntary compliance agreements, compulsion and removal of federal funding.  34 C.F.R. §99.67.

The Secretary has designated the below address as the location to file complaints:

Family Policy Compliance Office (“FPCO”)
U.S. Department of Education
400 Maryland Avenue, SW
Washington, D.C. 20202

 34 C.F.R. §99.63. 

FPCO has a useful website which contains the Federal Regulations discussed: http://www2.ed.gov/policy/gen/guid/fpco/index.html (Consultation of this website for specific definitions, which is beyond the scope of this article, is useful). This website also has some complaint forms, which should be completed and attached to any letter sent.

A FERPA complaint is not a matter that is filed with your local Office of Civil Rights (“OCR”).  Although, those local OCR offices might have some concurrent ability to handle the matter.

Your complaint must be filed within 180 days of its occurrence, and it must state facts demonstrating the violation. 34 C.F.R. §99.64.  It is best to attach any documents that support your facts.  If the school made a response to your request, a copy of that should be included too.  An example of a complaint letter might be:

Re:    FERPA Violation
Records of Student Bob Doe
XYZ School District

Dear Secretary of Education:

We are the parents of Bob Doe who attends 6th Grade in the XYZ School District.  On January 4, 2012, I requested the ability to view my child’s education records at the XYZ School District.  I placed that request in writing. (Please see the attached email).  It is presently, March 4, 2012. The school has responded that I am not allowed to view my child’s file. (Please see attached response to my email). To date, I have not been permitted access to my child’s records.  More than the 45 days permitted by 34 C.F.R. §99.10(b) have elapsed.  Therefore, I am filing this written complaint against the XYZ School District.  Also, please help me obtain access to these records.

Sincerely,
John and Jane Doe

The FPCO will acknowledge your complaint and keep you apprised of its progress and outcome.  34 C.F.R. §§99.65-.67.

 Challenging Accuracy (Amendment and Enforcement)

Problems can occur while viewing the file.  Say you find:

a) something missing;
b) something included that should not be; or
c) an error.

You have recourse and may challenge the content of your educational record. 20 U.S.C. §1232g(a)(2).

The first step in the process is a request to the institution to change the record. 34 C.F.R. §99.20(a).  There is no written request requirement in the Federal Regulations.  However, the school might have a written request requirement.  Even if it does not, it is always best to put the request in writing to avoid confusion.  For example:

Re:    Records of Student Bob Doe

Dear Superintendent Jones:

We are the parents of Bob Doe who attends 6th Grade in your XYZ School District.  On January 4, 2012, I requested the ability to view my child’s education records at the XYZ School District.  After doing so, I found that Bob’s grade for his 1st quarter Math is listed as “Incomplete.”  The report card we received on October 28, 2011 shows that Bob received a “B” for his 1st quarter Math grade.  Please rectify this inaccuracy in Bob’s records to show that he received a “B”; not an “Incomplete.”

Sincerely,
John and Jane Doe

In this manner, you are setting forth the exact inaccuracy you believe exists and the specific action that you wish the school to take.  After receipt of the request, the school must make an administrative decision on whether or not to grant the amendment.  34 C.F.R. §99.20(b).  The only time restriction for this decision is a “reasonable time.”  I would posit, that with the 45-day time limitation concerning access (discussed above), anything longer than 45 days would likely violate the “reasonable time” standard.

If the school opts to change the record, congratulations.  The school is required to send you written confirmation and a copy of the amendment. 34 C.F.R. §99.21.

If not, the school is required to inform you of its decision and of your right to a hearing.  34 C.F.R. §99.20(c).  (Nothing in this section requires that school’s notification to you to be in writing).  If you request a hearing, one must be provided within a “reasonable time.”  If you request a hearing, although the Federal Regulations do not require it, you should put the same in writing. For example:

Re:    Records of Student Bob Doe

Dear Superintendent Jones:

We understand that the XYZ School District has refused to grant the amendment to Bob Doe’s records that we requested in our correspondence of March 1, 2012.  As such, we request our right to a hearing based on 34 C.F.R. §99.20-.22.

Sincerely,
John and Jane Doe

A member of the school district that has no direct vested interest in the matter may serve as the hearing officer. 34 C.F.R. §99.21. While this might not seem like the most impartial hearing officer, it is the current state of the law but is changeable by the Secretary of Education issuing new implementing regulations.  If enough people ask for the regulation to change, the Secretary might consider doing so.

You will have the right to notification of the hearing’s date, time and location; the right to have an attorney at your own expense; and the right to present evidence. 34 C.F.R. §99.22.  The Hearing Officer must issue a reasoned decision using only the evidence presented at the hearing, and stating why the Hearing Officer is issuing that particular decision.  Id.

The Federal Regulations do not denote any right to judicial review of the Hearing Officer’s decision to Federal District Court.  Gonzaga Univ. leaves the distinct impression that there is no federal judicial review of the Hearing Officer’s decision.  536 U.S. at  298.  But also, the Secretary of Education would have the ability to issue a decision contrary to the Hearing Officer.  Id.

As such, if you are not satisfied with the outcome of the hearing, you could file a complaint with FPCO in the same manner as set forth above concerning your rights to access.

By: Michael L. Belancioпрограмма для накрутки сердечек в вквзлом wifi на андроидобслуживание расчетного счета для юридических лицprestige online casinobedava casino oyunu oyna

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Michael Belancio

Michael Belancio has an array of litigation experience at the trial and appellate levels, representing both plaintiffs and defendants. His experience encompasses personal injury,... More about Michael Belancio

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