Because the number of records in student files, especially for children with disabilities, can multiply rapidly, FERPA and the Individuals with Disabilities Education Act’s regulations address the destruction of information no longer needed to provide children with services, but do not identify which records it covers or how long officials must wait before acting.
Without specifying time frames for doing so, officials must inform parents and qualified students that records will be destroyed and that they can preserve, without any time limit, directory information, including students’ names, addresses, phone numbers, grades, attendance records, classes attended, grades completed, and when they graduated.
Because many documents may be needed in the future if litigation should occur, it is wise to consult legal counsel when selecting materials to be purged after federal and state statutes of limitation have expired.
If parents are denied opportunities to review the records of their children or students’ information is released impermissibly, such as for those over 18 attending postsecondary institutions, officials who acted improperly can be charged with violating FERPA, thereby triggering its enforcement provisions.
The Supreme Court’s first case on enforcing FERPA, 2002’s Owasso Independent School District v. Falvo, addressed peer grading whereby students evaluate the papers of their classmates and call out the marks to their teachers. Rejecting a mother in Oklahoma’s claim that this practice violated the privacy rights of her children, the Justices explained that peer grading does not turn the results into educational records covered by FERPA until teachers enter them in their gradebooks.
About four months later, though, in Gonzaga University v. Doe, a case from higher education in Washington State, still, it's the only other case on FERPA, the Supreme Court essentially nullified Falvo in clarifying the statute’s reach. The Justices ruled that because the only remedy available to aggrieved parties is to file written complaints alleging FERPA violations with the federal Department of Education’s Office of Family Policy Compliance Office (FPCO), individuals cannot initiate suits directly against their boards.
Now parties must file complaints within 180 days of when alleged violations occurred, or they knew or reasonably should have known about infractions. On receiving complaints, FPCO officials must notify school administrators in writing, without specifying how soon they must do so, detailing the substance of alleged violations and requesting responses before considering whether to conduct investigations.
SBOs and their teams would be wise to adopt FERPA policies that:
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Protect the privacy of files by appointing record keepers to prevent unauthorized access by student workers, parental volunteers, and/or others. This person should keep a log, including the name, date, time, and duration individuals accessed hard copy materials; electronic files should be password-protected.
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Consistent with state laws, which may be more detailed than FERPA, protect the rights of noncustodial parents to see records, indicating how they can access the files of their children.
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Conduct hearings for individuals who object to the contents of student records and, if ordered to do so, amend inaccurate or misleading records, allowing parents or students to include statements in unamended files.
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Include procedures mandating regular reviews of the files of students with disabilities, removing documents no longer needed. Because many documents may be needed in the future if litigation should occur, it is wise to consult legal counsel when selecting materials to be purged after federal and state statutes of limitation have expired.
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Direct boards to conduct annual reviews by teams including, but not necessarily limited to, their SBO; its attorney; one of its members; the director of special education; special education and regular teachers along with principals from all levels of schools; a parent; and possibly an older student to ensure that policies are up to date with developments in federal and state law.
Because knowledge of the law can help to avoid potential controversies or litigation, the better SBOs and their teams understand FERPA, the greater their ability to spend district resources educating children rather than fighting legal battles they easily could have avoided.