Quality Education for Children with Disabilities: Topic Briefs for Parents and Their Advocates

 

   # 11 -- Reviewing and Correcting Education Records

 

 

Introduction

 

            The Family Educational Rights and Privacy Act (“FERPA”) and the regulations implementing it give parents and older students tools for reviewing, understanding and correcting education records.  FERPA applies to public and private educational agencies and institutions that receive funds from the U.S. Department of Education.  The Individuals with Disabilities Education Act (“IDEA”), the IDEA regulations, and the regulations implementing Section 504 of the Rehabilitation Act of 1973 also address parent and student access to education records.

 

Reviewing Records

 

            IDEA , the §504 regulations and FERPA all guarantee parents the right to inspect and review education records concerning their children.1  The IDEA and FERPA regulations on this topic go into greater detail than do the §504 regulations which, for example, do not define "record" and do not detail the scope of access rights.2  However, it is important to remember that FERPA rights apply to all parents and students, regardless of whether the student is eligible for services under IDEA, or even has a disability.  Thus parents of children who are protected by §504 but not by IDEA enjoy the full range of access rights afforded by FERPA.

 

            Under both IDEA and FERPA, school systems must honor a request to review education records without unnecessary delay; in no event can a system take more than 45 days to comply.3   IDEA further provides that education records must be made available before any meeting concerning an individualized education program (“IEP”), before any IDEA due process hearing, and in connection with certain disciplinary matters.4

            For purposes of IDEA and FERPA, "education records" means those records that are directly related to a student.5  “Record,” in turn, means any information recorded in any way and includes, among other things, handwriting, print, tape and film.6  Upon request, a school system must provide parents with a list of the types and locations of the education records it collects, maintains or uses.7

 

            Access rights, or the right to inspect and review records,  include the rights to:

 

•                     receive a response from school officials to reasonable requests for explanations and interpretations of the records;

•                     have a representative of the parent inspect and review the records; and

•                     obtain copies of records, if a lack of copies would effectively prevent the parent from exercising the right to inspect and review the records.8

 

<                    A school system may not charge a fee for copies if the fee would effectively prevent the parent from exercising the right to inspect and review the records, and in no event can the system charge for searching for or retrieving records.9

Either parent, including a non-custodial parents, may review and inspect records under both laws, unless that right has been revoked by state law, court order or other legally binding document relating to matters such as divorce, separation, custody or guardianship.10

            FERPA grants all of the above rights to students who have reached age 18 or are in postsecondary education.  When a student thus becomes eligible to exercise FERPA rights himself, these rights transfer from the parent and become the student’s, exclusively.11  In addition, under IDEA many rights, including the above, ordinarily transfer from parent to student when the student reaches the age of majority under state law.12

 

Correcting Records

 

            Under FERPA, parents or older students who find that an education record is wrong or


misleading have the right to ask the school to change the record.   They also have the right to ask for changes if what is in the record violates the student's privacy or other rights.13 If the school will not make the changes, parents or students have the right to a hearing.14  If the parent or student proves at the hearing that the record contains improper information, the school must correct it.15  Parents and students who do not win at the hearing have the right to put a written statement in the student’s education record explaining their point of view.16  The school must keep this statement in the student's education record at all times, and disclose it whenever it discloses the portion of the record to which the statement relates.17

 

Enforcing Rights

 

            Parents and students who believe that their IDEA rights regarding access to records have been violated may invoke any of the IDEA procedures ordinarily available to vindicate IDEA rights, including requesting a due process hearing, filing a complaint with the state education agency and bringing an action in court.18  A complaint that the Section 504 regulation requiring access to records has been violated may be filed with the appropriate regional office of the U.S. Department of Education/Office for Civil Rights, and may also be the subject of a lawsuit. Written complaints regarding FERPA violations may be filed with the Family Policy Compliance Office, U.S. Department of Education, Washington, D.C. 20202-4605.19   Depending upon the circumstances, it may also be possible to bring a lawsuit when FERPA rights are violated.20

 

 

Notes

 

 


1. 20 U.S.C. §1415(b)(1); 20 U.S.C. §1232g(a)(1)(A); 34 C.F.R. §§300.501(a)(1), 300.562-300.569; 34 C.F.R. §104.36; 34 C.F.R. §§99.10 - 99.12.

2. The §504 regulations do provide, however, that compliance with IDEA access requirements will fulfill §504 requirements. See 34 C.F.R. §104.36.

3. 34 C.F.R. §300.562(a); 34 C.F.R. §99.10(b).

4. 34 C.F.R. §300.562(a).

5. 34 C.F.R. §99.3, incorporated into the IDEA regulations by reference at 34 C.F.R. §300.560(b).  Note that FERPA’s definition of the “educational records” that parents have a right to inspect and review excludes some kinds of material, including records of instructional, supervisory, and administrative personnel and educational personnel ancillary to those persons that are kept in the sole possession of the maker of the record, and are not accessible or revealed to any other person except a temporary substitute for the maker of the record; records of the law enforcement unit of an educational agency or institution; certain records relating to employees of an educational agency or institution; and certain records regarding students who are 18 years of age or older, or who are attending an institution of postsecondary education.  See 34 C.F.R. §99.3.

6. Id.

7. 34 C.F.R. §300.565.

8. 34 C.F.R. §300.562(b); 34 C.F.R. §99.10(c), (d)..

9. 34 C.F.R. §300.566; 34 C.F.R. §99.11.

10. 34 C.F.R. §300.562(c); 34 C.F.R. §99.4.

11. 34 C.F.R. §§99.1, 99.5.

12. In regard to access to education records in particular, see 34 C.F.R. §300.574(c).

13.  20 U.S.C. §1232g(a)(2); 34 C.F.R. §99.20(a).

14.  20 U.S.C. §1232g(a)(2); 34 C.F.R. §99.21(a).

15. 20 U.S.C. §1232g(a)(2); 34 C.F.R. §99.21(b).

16. 20 U.S.C. §1232g(a)(2); 34 C.F.R. §99.21(b)(2).

17. 20 U.S.C. §1232g(a)(2); 34 C.F.R. §99.21(c).

18. See 20 U.S.C. §1415(b)(6), (f), (g), (i)(2); 34 C.F.R. §§300.660 - 300.662.

19. See 34 C.F.R. §§99.60 - 99.67.

20. While a  number of courts have held that there is no private right of action to enforce FERPA, a number have  held that individuals whose FERPA rights have been violated may bring a damages action under 42 U.S.C. §1983 against the offending educational agency or institution. See, e.g., Tarka v. Cunningham, 917 F.2d 890 (5th Cir. 1990); Fay v. South Colonie Central School District, 802 F.2d 21, 33 (2d Cir. 1986); Maynard v. Greater Hoyt School District, 876 F. Supp. 1104 (D.S.D. 1995); Belanger v. Nashua NH School District, 856 F. Supp. 40 (D.N.H. 1994); Krebs v. Rutgers, 797 F. Supp. 1254 (D.N.J. 1992).  But see also, e.g., Norris v. Bd. of Ed. of Greenwood, 797 F. Supp. 1452, 1465 (S.D. Ind. 1992).