FERPA (formally known as the Family Educational Rights and Privacy Act) is a federal law that was passed in 1974 with the purpose of protecting educational information and records from public entities. FERPA affords parents and guardians the right to access their child’s educational records, the right to have records amended in certain circumstances, and the right to oversight over the disclosure of personally identifiable information from the educational records.
As school districts increasingly approve and implement policies that undermine parental authority by withholding information about minor children, parents are looking for answers and relief in the law.
FERPA is an important tool for parents to hold their school boards and administrators accountable for the policies they pass and how these policies are enforced. See generally 20 U.S.C. §1232g; 34 C.F.R. Part 99.
At age 18, or after the student enters a postsecondary institution, the rights under FERPA transfer from the parents to the student (“eligible student”). FERPA applies to all educational institutions that receive federal funding. Students who have disabilities have other confidentiality protections under the law.
Who does FERPA protect?
The Family Educational Rights and Privacy Act protects the private educational records of schoolchildren who attend public academic institutions. See generally 20 U.S.C. §1232g; 34 C.F.R. Part 99. In general, this federal law gives parents and legal guardians the right to access their child’s “education records,” the right to have records amended in certain circumstances, and oversight over the disclosure of personally identifiable information from the educational records. At age 18 or upon entry into a postsecondary institution at any age, the rights under FERPA transfer from the parents to the student (“eligible student”). See 20 U.S.C. §1232g(d). FERPA applies to all educational institutions that receive federal funding.
What are “education records”?
FERPA provides a general definition of “education records” and then creates limited exceptions to that definition. Under FERPA, the term “‘education records’’ generally means materials that (1) “contain information directly related to a student” and (2) “are maintained by an educational agency or institution or by a person acting for such agency or institution.” 20 U.S.C. §1232g(a)(4)(A); 34 C.F.R. §99.3. The term “education records” does not include, for example, “[r]ecords that are kept in the sole possession of the maker, are used only as a personal memory aid, and are not accessible or revealed to any other person except a temporary substitute for the maker of the record.” 34 C.F.R. §99.3; 20 U.S.C. §1232g(a)(4)(i); see also 20 U.S.C. §1232g(a)(4)(ii)-(iv) (noting other exceptions); 34 C.F.R. §99.3 (same).
The most common education record is paperwork relating to a student’s academic tenure, most notably, their transcript. Student discipline records are another example of an education record. See Doe v. Massachusetts Inst. of Tech., 46 F.4th 61, 74 (1st Cir. 2022); United States v. Mia. Univ., 294 F.3d 797, 812 (6th Cir. 2002).1
What is an “eligible student”?
The Department of Education defines an “eligible student” as a “student who reaches 18 years of age or attends an institution of postsecondary education.” 34 C.F.R. §99.3 (implementing 20 U.S.C. §1232g(d)).
Can academic institutions refuse a request from a parent to inspect their school child’s “educational records” under FERPA?
No. Absent limited exceptions, federal law requires academic institutions to give parents, guardians, and “eligible students” access to inspect and review their education records. FERPA applies to all educational institutions that receive federal funding. See Owasso Indep. Sch. Dist. No. I-011 v. Falvo, 534 U.S. 426, 428 (2002) (“Under FERPA, schools and educational agencies receiving federal financial assistance must comply with certain conditions.” (citing 20 U.S.C. §1232g(a)(3))).
Are there records that aren’t covered by FERPA?
Yes. Some records are exempted from FERPA. They include notes used as a personal memory aid and aren’t accessible or revealed to any other person except a temporary substitute for the maker of the records, records maintained by a law enforcement unit of the educational institution, and grades on peer-graded papers before they are collected and recorded by a teacher. See 20 U.S.C. §1232g(a)(4)(B) (listing exceptions); 34 C.F.R. §99.3 (same); Owasso Indep. Sch. Dist. No. I-011 v. Falvo, 534 U.S. 426 (2002). But students who have disabilities have further confidentiality protections under the law.
Upon request, what must academic institutions provide parents, guardians, and “eligible students” with under FERPA?
The school or State Education Agency (SEA) must provide the relevant parent, guardian, or “eligible student” access to “education records” within 45 days of receiving the request. 20 U.S.C. §1232g(a)(1)(A); 34 C.F.R. §99.10. But “[i]f circumstances effectively prevent the parent or eligible student from exercising the right to inspect and review the student’s education records,” then the school must “[p]rovide the parent or eligible student with a copy of the records requested” or “[m]ake other arrangements for the parent or eligible student to inspect and review the requested records.” 34 C.F.R. §99.10(d). The school “may charge a fee for a copy of an education record” unless a fee “effectively prevents a parent or eligible student from exercising” their right to inspect and review the education records. 34 C.F.R. §99.11.
Parents, guardians, and eligible students also have a right to request an amendment of records. See 20 U.S.C. §1232g(a)(2); 34 C.F.R. §99.20. If parents, guardians, or eligible students “believe the education records relating to the student contain information that is inaccurate, misleading, or in violation of the student’s rights of privacy, he or she may ask the educational agency or institution to amend the record.” 34 C.F.R. §99.20(a). The school or SEA must address the amendment request “within a reasonable time,” and if it “decides not to amend the record as requested,” it must “inform the parent or eligible student of its decision and of his or her right to a hearing.” 34 C.F.R. §99.20(b)-(c); see also 34 C.F.R. §99.21 & §99.22 (hearing right). If the amendment is denied during the hearing process, the party representing the child is allowed to draft and include a statement of explanation in the child’s education records to provide context for the asserted discrepancy. 34 C.F.R. § 99.21(b)(2).
Note: All parents (or “eligible students”) must be informed of their FERPA rights in accordance with the law. Eligible students have the right to file a complaint if they believe their rights have been violated. 20 U.S.C. §1232g(e).
What body oversees FERPA policies? Are there mechanisms in place to ensure academic institutions are responsive and give parents, guardians, and “eligible students” access to their records?
Parents and students may file complaints with the SPPO “within 180 days of the date of the alleged violation or of the date that the complainant knew or reasonably should have known of the alleged violation.” 34 C.F.R. §99.64; see also, e.g., 34 C.F.R. §§99.63-99.67. Below is the contact information and this is the link to the FERPA complaint form.
U.S. Department of Education
400 Maryland Ave, SW
Washington, DC 20202-8520
What would a FERPA violation look like? Do you believe there has been a FERPA Violation?
- See also, e.g., Ricard v. USD 475 Geary Cnty., KS Sch. Bd., No. 522CV04015HLTGEB, 2022 WL 1471372, at *6-7 & n.9 (D. Kan. May 9, 2022) (discussing what constitutes as an “education record”); Willey v. Sweetwater Cnty. Sch. Dist. No. 1 Bd. of Trustees, No. 23-CV-069-SWS, 2023 WL 4297186, at *14-15 & n.12 (D. Wyo. June 30, 2023); Unincorporated Operating Div. of Indiana Newspapers, Inc. v. Trustees of Indiana Univ., 787 N.E.2d 893, 905-06 (Ind. Ct. App. 2003) (same); Owasso Indep. Sch. Dist. No. I-011 v. Falvo, 534 U.S. 426 (2002).