Texas Even Start Administrative Manual
June 2004, (Revised January 2008)
FERPA, EDGAR, OMB
Family Educational Rights and Privacy Act (FERPA)
Sec. 1232g. - Family educational and privacy rights
(a) Conditions for availability of funds to educational agencies or
institutions; inspection and review of education records; specific information
to be made available; procedure for access to education records; reasonableness
of time for such access; hearings; written explanations by parents; definitions
(1)
(A) No funds shall be made available under any applicable program
to any educational agency or institution which has a policy of denying,
or which effectively prevents, the parents of students who are or
have been in attendance at a school of such agency or at such institution,
as the case may be, the right to inspect and review the education
records of their children. If any material or document in the education
record of a student includes information on more than one student,
the parents of one of such students shall have the right to inspect
and review only such part of such material or document as relates
to such student or to be informed of the specific information contained
in such part of such material. Each educational agency or institution
shall establish appropriate procedures for the granting of a request
by parents for access to the education records of their children
within a reasonable period of time, but in no case more than forty-five
days after the request has been made.
(B) No funds under any applicable program shall be made available
to any State educational agency (whether or not that agency is an
educational agency or institution under this section) that has a
policy of denying, or effectively prevents, the parents of students
the right to inspect and review the education records maintained
by the State educational agency on their children who are or have
been in attendance at any school of an educational agency or institution
that is subject to the provisions of this section.
(C) The first sentence of subparagraph (A) shall not operate to
make available to students in institutions of postsecondary education
the following materials:
(i) financial records of the parents of the student or any information
contained therein;
(ii) confidential letters and statements of recommendation, which
were placed in the education records prior to January 1, 1975,
if such letters or statements are not used for purposes other than
those for which they were specifically intended;
(iii) if the student has signed a waiver of the student's right
of access under this subsection in accordance with subparagraph
(D), confidential recommendations-
(I) respecting admission to any educational agency or institution,
(II) respecting an application for employment, and
(III) respecting the receipt of an honor or honorary recognition.
(D) A student or a person applying for admission may waive his
right of access to confidential statements described in clause (iii)
of subparagraph (C), except that such waiver shall apply to recommendations
only if
(i) the student is, upon request, notified of the names of all
persons making confidential recommendations and
(ii) such recommendations are used solely for the purpose for
which they were specifically intended. Such waivers may not be
required as a condition for admission to, receipt of financial
aid from, or receipt of any other services or benefits from such
agency or institution.
(2) No funds shall be made available under any applicable program
to any educational agency or institution unless the parents of students
who are or have been in attendance at a school of such agency or at
such institution are provided an opportunity for a hearing by such
agency or institution, in accordance with regulations of the Secretary,
to challenge the content of such student's education records, in order
to insure that the records are not inaccurate, misleading, or otherwise
in violation of the privacy rights of students, and to provide an opportunity
for the correction or deletion of any such inaccurate, misleading or
otherwise inappropriate data contained therein and to insert into such
records a written explanation of the parents respecting the content
of such records.
(3) For the purposes of this section the term ''educational agency
or institution'' means any public or private agency or institution
which is the recipient of funds under any applicable program.
(4)
(A) For the purposes of this section, the term ''education records''
means, except as may be provided otherwise in subparagraph (B), those
records, files, documents, and other materials which -
(i) contain information directly related to a student; and
(ii) are maintained by an educational agency or institution or
by a person acting for such agency or institution.
(B) The term ''education records'' does not include -
(i) records of instructional, supervisory, and administrative
personnel and educational personnel ancillary thereto which are
in the sole possession of the maker thereof and which are not accessible
or revealed to any other person except a substitute;
(ii) records maintained by a law enforcement unit of the educational
agency or institution that were created by that law enforcement
unit for the purpose of law enforcement;
(iii) in the case of persons who are employed by an educational
agency or institution but who are not in attendance at such agency
or institution, records made and maintained in the normal course
of business which relate exclusively to such person in that person's
capacity as an employee and are not available for use for any other
purpose; or
(iv) records on a student who is eighteen years of age or older,
or is attending an institution of postsecondary education, which
are made or maintained by a physician, psychiatrist, psychologist,
or other recognized professional or paraprofessional acting in
his professional or paraprofessional capacity, or assisting in
that capacity, and which are made, maintained, or used only in
connection with the provision of treatment to the student, and
are not available to anyone other than persons providing such treatment,
except that such records can be personally reviewed by a physician
or other appropriate professional of the student's choice.
(5)
(A) For the purposes of this section the term ''directory information''
relating to a student includes the following: the student's name,
address, telephone listing, date and place of birth, major field
of study, participation in officially recognized activities and sports,
weight and height of members of athletic teams, dates of attendance,
degrees and awards received, and the most recent previous educational
agency or institution attended by the student.
(B) Any educational agency or institution making public directory
information shall give public notice of the categories of information
which it has designated as such information with respect to each
student attending the institution or agency and shall allow a reasonable
period of time after such notice has been given for a parent to inform
the institution or agency that any or all of the information designated
should not be released without the parent's prior consent.
(6) For the purposes of this section, the term ''student'' includes
any person with respect to whom an educational agency or institution
maintains education records or personally identifiable information,
but does not include a person who has not been in attendance at such
agency or institution.
(b) Release of education records; parental consent requirement; exceptions;
compliance with judicial orders and subpoenas; audit and evaluation of
federally-supported education programs; recordkeeping
(1) No funds shall be made available under any applicable program
to any educational agency or institution which has a policy or practice
of permitting the release of education records (or personally identifiable
information contained therein other than directory information, as
defined in paragraph (5) of subsection (a) of this section) of students
without the written consent of their parents to any individual, agency,
or organization, other than to the following -
(A) other school officials, including teachers within the educational
institution or local educational agency, who have been determined
by such agency or institution to have legitimate educational interests,
including the educational interests of the child for whom consent
would otherwise be required;
(B) officials of other schools or school systems in which the student
seeks or intends to enroll, upon condition that the student's parents
be notified of the transfer, receive a copy of the record if desired,
and have an opportunity for a hearing to challenge the content of
the record;
(C)
(i) authorized representatives of
(I) the Comptroller General of the United States,
(II) the Secretary, or
(III) State educational authorities, under the conditions set
forth in paragraph (3), or (ii) authorized representatives of
the Attorney General for law enforcement purposes under the same
conditions as apply to the Secretary under paragraph (3);
(D) in connection with a student's application for, or receipt
of, financial aid;
(E) State and local officials or authorities to whom such information
is specifically allowed to be reported or disclosed pursuant to State
statute adopted -
(i) before November 19, 1974, if the allowed reporting or disclosure
concerns the juvenile justice system and such system's ability
to effectively serve the student whose records are released, or
(ii) after November 19, 1974, if -
(I) the allowed reporting or disclosure concerns the juvenile
justice system and such system's ability to effectively serve,
prior to adjudication, the student whose records are released;
and
(II) the officials and authorities to whom such information
is disclosed certify in writing to the educational agency or
institution that the information will not be disclosed to any
other party except as provided under State law without the prior
written consent of the parent of the student. (FOOTNOTE 1)
(F) organizations conducting studies for, or on behalf of, educational
agencies or institutions for the purpose of developing, validating,
or administering predictive tests, administering student aid programs,
and improving instruction, if such studies are conducted in such
a manner as will not permit the personal identification of students
and their parents by persons other than representatives of such organizations
and such information will be destroyed when no longer needed for
the purpose for which it is conducted;
(G) accrediting organizations in order to carry out their accrediting
functions;
(H) parents of a dependent student of such parents, as defined
in section 152 of
title 26;
(I) subject to regulations of the Secretary, in connection with
an emergency, appropriate persons if the knowledge of such information
is necessary to protect the health or safety of the student or other
persons; and
(J)
(i) the entity or persons designated in a Federal grand jury
subpoena, in which case the court shall order, for good cause shown,
the educational agency or institution (and any officer, director,
employee, agent, or attorney for such agency or institution) on
which the subpoena is served, to not disclose to any person the
existence or contents of the subpoena or any information furnished
to the grand jury in response to the subpoena; and
(ii) the entity or persons designated in any other subpoena issued
for a law enforcement purpose, in which case the court or other
issuing agency may order, for good cause shown, the educational
agency or institution (and any officer, director, employee, agent,
or attorney for such agency or institution) on which the subpoena
is served, to not disclose to any person the existence or contents
of the subpoena or any information furnished in response to the
subpoena.
Nothing in subparagraph (E) of this paragraph shall prevent a State
from further limiting the number or type of State or local officials
who will continue to have access thereunder.
(2) No funds shall be made available under any applicable program
to any educational agency or institution which has a policy or practice
of releasing, or providing access to, any personally identifiable information
in education records other than directory information, or as is permitted
under paragraph (1) of this subsection, unless -
(A) there is written consent from the student's parents specifying
records to be released, the reasons for such release, and to whom,
and with a copy of the records to be released to the student's parents
and the student if desired by the parents, or
(B) except as provided in paragraph (1)(J), such information is
furnished in compliance with judicial order, or pursuant to any lawfully
issued subpoena, upon condition that parents and the students are
notified of all such orders or subpoenas in advance of the compliance
therewith by the educational institution or agency.
(3) Nothing contained in this section shall preclude authorized representatives
of
(A) the Comptroller General of the United States,
(B) the Secretary, or
(C) State educational authorities from having access to student
or other records which may be necessary in connection with the audit
and evaluation of Federally-supported education programs, or in connection
with the enforcement of the Federal legal requirements which relate
to such programs: Provided, That except when collection of personally
identifiable information is specifically authorized by Federal law,
any data collected by such officials shall be protected in a manner
which will not permit the personal identification of students and
their parents by other than those officials, and such personally
identifiable data shall be destroyed when no longer needed for such
audit, evaluation, and enforcement of Federal legal requirements.
(4)
(A) Each educational agency or institution shall maintain a record,
kept with the education records of each student, which will indicate
all individuals (other than those specified in paragraph (1)(A) of
this subsection), agencies, or organizations which have requested
or obtained access to a student's education records maintained by
such educational agency or institution, and which will indicate specifically
the legitimate interest that each such person, agency, or organization
has in obtaining this information. Such record of access shall be
available only to parents, to the school official and his assistants
who are responsible for the custody of such records, and to persons
or organizations authorized in, and under the conditions of, clauses
(A) and (C) of paragraph (1) as a means of auditing the operation
of the system.
(B) With respect to
this subsection, personal information shall only be transferred to
a third party on the condition that such party will not permit any
other party to have access to such information without the written
consent of the parents of the student.
If a third party outside the educational agency or institution
permits access to information in violation of paragraph (2)(A), or
fails to destroy information in violation of paragraph (1)(F), the
educational agency or institution shall be prohibited from permitting
access to information from education records to that third party
for a period of not less than five years.
(5) Nothing in this section shall be construed to prohibit State and
local educational officials from having access to student or other
records which may be necessary in connection with the audit and evaluation
of any federally or State supported education program or in connection
with the enforcement of the Federal legal requirements which relate
to any such program, subject to the conditions specified in the proviso
in paragraph (3).
(6)
(A) Nothing in this section shall be construed to prohibit an institution
of postsecondary education from disclosing, to an alleged victim
of any crime of violence (as that term is defined in section 16 of
title 18),
or a nonforcible sex offense, the final results of any disciplinary
proceeding conducted by such institution against the alleged perpetrator
of such crime or offense with respect to such crime or offense.
(B) Nothing in this section shall be construed to prohibit an institution
of postsecondary education from disclosing the final results of any
disciplinary proceeding conducted by such institution against a student
who is an alleged perpetrator of any crime of violence (as that term
is defined in section 16 of
title 18),
or a nonforcible sex offense, if the institution determines as a
result of that disciplinary proceeding that the student committed
a violation of the institution's rules or policies with respect to
such crime or offense.
(C) For the purpose of this paragraph, the final results of any
disciplinary proceeding -
(i) shall include only the name of the student, the violation
committed, and any sanction imposed by the institution on that
student; and
(ii) may include the name of any other student, such as a victim
or witness, only with the written consent of that other student.
(7)
(A) Nothing in this section may be construed to prohibit an educational
institution from disclosing information provided to the institution
under section 14071 of
title 42 concerning
registered sex offenders who are required to register under such
section.
(B) The Secretary shall take appropriate steps to notify educational
institutions that disclosure of information described in subparagraph
(A) is permitted.
(c) Surveys or data-gathering activities; regulations. - Not later
than 240 days after October 20, 1994, the Secretary shall adopt appropriate
regulations or procedures, or identify existing regulations or procedures,
which protect the rights of privacy of students and their families in
connection with any surveys or data-gathering activities conducted, assisted,
or authorized by the Secretary or an administrative head of an education
agency. Regulations established under this subsection shall include provisions
controlling the use, dissemination, and protection of such data. No survey
or data-gathering activities shall be conducted by the Secretary, or
an administrative head of an education agency under an applicable program,
unless such activities are authorized by law.
(d) Students' rather than parents' permission or consent. - For the
purposes of this section, whenever a student has attained eighteen years
of age, or is attending an institution of postsecondary education, the
permission or consent required of and the rights accorded to the parents
of the student shall thereafter only be required of and accorded to the
student.
(e) Informing parents or students of rights under this section. No
funds shall be made available under any applicable program to any educational
agency or institution unless such agency or institution effectively informs
the parents of students, or the students, if they are eighteen years
of age or older, or are attending an institution of postsecondary education,
of the rights accorded them by this section.
(f) Enforcement; termination of assistance. - The Secretary shall take
appropriate actions to enforce this section and to deal with violations
of this section, in accordance with this chapter, except that action
to terminate assistance may be taken only if the Secretary finds there
has been a failure to comply with this section, and he has determined
that compliance cannot be secured by voluntary means.
(g) Office and review board; creation; functions. - The Secretary shall
establish or designate an office and review board within the Department
for the purpose of investigating, processing, reviewing, and adjudicating
violations of this section and complaints which may be filed concerning
alleged violations of this section. Except for the conduct of hearings,
none of the functions of the Secretary under this section shall be carried
out in any of the regional offices of such Department.
(h) Disciplinary records; disclosure. - Nothing in this section shall
prohibit an educational agency or institution from -
(1) including appropriate information in the education record of any
student concerning disciplinary action taken against such student for
conduct that posed a significant risk to the safety or well-being of
that student, other students, or other members of the school community;
or
(2) disclosing such information to teachers and school officials,
including teachers and school officials in other schools, who have
legitimate educational interests in the behavior of the student.
(i) Drug and alcohol violation disclosures
(1) In general - Nothing in this Act or the Higher Education Act
of 1965 (20 U.S.C.
- 1001 et
seq.) shall be construed to prohibit an institution of higher education
from disclosing, to a parent or legal guardian of a student, information
regarding any violation of any Federal, State, or local law, or of
any rule or policy of the institution, governing the use or possession
of alcohol or a controlled substance, regardless of whether that information
is contained in the student's education records, if -
(A) the student is under the age of 21; and
(B) the institution determines that the student has committed a
disciplinary violation with respect to such use or possession.
(2) State law regarding disclosure - Nothing in paragraph (1) shall
be construed to supersede any provision of State law that prohibits
an institution of higher education from making the disclosure described
in subsection (a) of this section.
(j) Investigation and prosecution of terrorism
(1) In general -Notwithstanding subsections (a) through (i) of this
section or any provision of State law, the Attorney General (or any
Federal officer or employee, in a position not lower than an Assistant
Attorney General, designated by the Attorney General) may submit a
written application to a court of competent jurisdiction for an ex
parte order requiring an educational agency or institution to permit
the Attorney General (or his designee) to -
(A) collect education records in the possession of the educational
agency or institution that are relevant to an authorized investigation
or prosecution of an offense listed in section 2332b (g)(5)(B)
of title 18,
or an act of domestic or international terrorism as defined in section
2331 of that title; and
(B) for official purposes related to the investigation or prosecution
of an offense described in paragraph (1)(A), retain, disseminate,
and use (including as evidence at trial or in other administrative
or judicial proceedings) such records, consistent with such guidelines
as the Attorney General, after consultation with the Secretary, shall
issue to protect confidentiality.
(2) Application and approval
(A) In general. - An application under paragraph (1) shall certify
that there are specific and articulable facts giving reason to believe
that the education records are likely to contain information described
in paragraph (1)(A).
(B) The court shall issue an order described in paragraph (1) if
the court finds that the application for the order includes the certification
described in subparagraph (A).
(3) Protection of educational agency or institution. - An educational
agency or institution that, in good faith, produces education records
in accordance with an order issued under this subsection shall not
be liable to any person for that production.
(4) Record-keeping - Subsection (b)(4) of this section does not apply
to education records subject to a court order under this subsection.
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