Can a Student Sue in Civil Court Based on a FERPA Violation?
Full Question:
Answer:
The United States Department of Education ruled this past week that my rights were violated in Public Education by the high school I was atending. They ruled it was a violation of FERPA. Do I have a civil law suit?
The Family Educational Rights and Privacy Act (FERPA) (20 U.S.C. § 1232g; 34 CFR Part 99) is a Federal law that protects the privacy of student education records. The law applies to all schools that receive funds under an applicable program of the U.S. Department of Education. Any record that contains personally identifiable information that is directly related to the student is an educational record under FERPA.
An educational agency or institution must give full rights under the Act to either parent, unless the agency or institution has been provided with evidence that there is a court order, state statute, or legally binding document relating to such matters as divorce, separation, or custody that specifically revokes these rights. You could petition the court to modify the divorce order if there has been a significant change in circumstances. Otherwise, it may be more a a disciplinary issue.
The following items are not considered educational records under FERPA:
-Private notes of individual staff or faculty; (NOT kept in student advising folders)
-Campus police records;
-Medical records;
-Statistical data compilations that contain no mention of personally identifiable information about any specific student.
Generally, schools must have written permission from the parent or eligible student in order to release any information from a student's education record. The student’s signature will authorize the release of grades and standardized test results.
FERPA training is a matter of each school's policy. It has been viewed as a toothless statute, as enforcement actions are rarely pursued. Any sanctions for the violation will most likely be a matter of internal disciplinary procedures based on the policies of the board of education or scool involved. If suggest contacting your teacher's union representative, if available, to determine your rights in a disciplinary action, as policies vary by school.
The following is part of FERPA:
Education records. (a) The term means those records that are:
(1) Directly related to a student; and
(2) Maintained by an educational agency or institution or by a party
acting for the agency or institution.
(b) The term does not include:
(1) 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;
(2) Records of the law enforcement unit of an educational agency or
institution, subject to the provisions of Sec. 99.8.
(3)(i) Records relating to an individual who is employed by an
educational agency or institution, that:
(A) Are made and maintained in the normal course of business;
(B) Relate exclusively to the individual in that individual's
capacity as an employee; and
(C) Are not available for use for any other purpose.
(ii) Records relating to an individual in attendance at the agency
or institution who is employed as a result of his or her status as a
student are education records and not excepted under paragraph (b)(3)(i)
of this definition.
(4) Records on a student who is 18 years of age or older, or is
attending an institution of postsecondary education, that are:
(i) Made or maintained by a physician, psychiatrist, psychologist,
or other recognized professional or paraprofessional acting in his or
her professional capacity or assisting in a paraprofessional capacity;
(ii) Made, maintained, or used only in connection with treatment of
the student; and
(iii) Disclosed only to individuals providing the treatment. For the
purpose of this definition, ``treatment'' does not include remedial
educational activities or activities that are part of the program of
instruction at the agency or institution; and
(5) Records that only contain information about an individual after
he or she is no longer a student at that agency or institution.
FERPA is a spending statute ("no funds shall be made available...") and so the Dept. of Education can ensure compliance only through the threat of discontinuing federal funding (and this is unlikely for single instances of violation). A 2002 Supreme Court decision held that students and parents may not file a federal lawsuit against an educational agency or institution for a FERPA violation. However, it may be possible to sue based on state law.
Please see the following MI statute to determine applicability:
600.2165 Disclosure of students' records or communications by school teacher or employee.
Sec. 2165. No teacher, guidance officer, school executive or other professional person engaged in character building in the public schools or in any other educational institution, including any clerical worker of such schools and institutions, who maintains records of students' behavior or who has records in his custody, or who receives in confidence communications from students or other juveniles, shall be allowed in any proceedings, civil or criminal, in any court of this state, to disclose any information obtained by him from the records or such communications; nor to produce records or transcript thereof, except that testimony may be given, with the consent of the person so confiding or to whom the records relate, if the person is 18 years of age or over, or, if the person is a minor, with the consent of his or her parent or legal guardian.
