Question

            Does IDEA require, or allow, schools to unilaterally transmit education records to law enforcement authorities when reporting a crime alleged to have been committed by a child with disabilities?

Answer

            No. The IDEA Amendments of 1997 added to the statute language stating that the Act does not prohibit school systems from reporting crimes allegedly committed by a child with a disability to “appropriate authorities,” and that when such reports are made the school system “shall ensure that copies of the special education and disciplinary records of the child are transmitted for consideration by the appropriate authorities to whom it reports the crime.” 20 U.S.C. §1415(k)(9)(B). However, other parts of the statute require compliance with the Family Educational Rights and Privacy Act (“FERPA”), 20 U.S.C. §1232g. See 20 U.S.C. §§1412(a)(8), 1417(c). FERPA, which applies to all students, prohibits disclosure of education records or any personally identifiable information contained in the records without the written consent of the parent (or the student, if 18 years of age or older), unless one of that statutory exceptions to the consent requirement apply. See 20 U.S.C. §1232g(b)(1), (d); 34 C.F.R. §99.3.

            The U.S. Department of Education’s final regulations implementing IDEA as amended in 1997, issued on March 12, 1999, state that “an agency reporting a crime...may transmit copies of the child’s special education and disciplinary records only to the extent that the transmission is permitted by the Family Educational Rights and Privacy Act.” 64 Fed. Reg. at 12455 (new 34 C.F.R. §300.529(b)(2)) (March 12, 1999) (emphasis added). For the Department’s rationale, see 64 Fed. Reg. at 12631-32.

            The exceptional circumstances under which protected education records may be disclosed without prior written consent are very narrow. They include disclosure in compliance with a judicial order or lawfully issued subpoena, provided that parents and students are notified in advance, and disclosure "to appropriate parties" in connection with a health or safety emergency, "if knowledge of the information is necessary to protect the health or safety of the student or other individuals." 20 U.S.C. §1232g(b)(2)(B); 34 C.F.R. §99.31(9). The latter exception is to be strictly construed. 20 U.S.C. §1232g(b)(2)(B); 34 C.F.R. §99.31(9). For additional exceptions to FERPA consent requirements, see 34 C.F.R. §99.31. Note that there is no broad exception for crime reports.

            FERPA was, however, amended in 1994 to address the limited circumstances under which school systems may disclose information from education records to juvenile authorities. Education records or personally identifiable information contained therein may be released to state and local officials or authorities to whom such information is specifically allowed to be reported or disclosed pursuant to a state statute adopted before November 19, 1974 if the allowed reporting or disclosure concerns the juvenile justice system and it's ability to effectively serve the student in question. If the relevant state statute was adopted after November 19, 1974, then reporting or disclosure is only permissible if it concerns the juvenile justice system's ability to effectively serve the student prior to adjudication, and the officials or authorities to whom the information is released certify in writing to the school system that the information will not be disclosed to any other party without the prior written consent of the student's parent, except as provided under state law. See 20 U.S.C. §1232g(b)(1)(E); 34 C.F.R. §99.38.

            FERPA is enforceable by an administrative complaint to the Family Policy Compliance Office of the U.S. Department of Education. 20 U.S.C. §1232g(b)(2)(B); 34 C.F.R. §99.31(9). 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).