Copyright © Allyn & Bacon 2008 Chapter 7 Liability and Student Records This multimedia product and its contents are protected under copyright law. The

Copyright © Allyn & Bacon 2008

Chapter 7Chapter 7Liability and Student RecordsLiability and Student Records

This multimedia product and its contents are protected under copyright law. The following are prohibited by law: any public This multimedia product and its contents are protected under copyright law. The following are prohibited by law: any public performance or display, including transmission of any image over a network; preparation of any derivative work, performance or display, including transmission of any image over a network; preparation of any derivative work, including the extraction, in whole or in part, of any images; any rental, lease, or lending of the program.including the extraction, in whole or in part, of any images; any rental, lease, or lending of the program.


Public Law 93-380, The Family Educational Public Law 93-380, The Family Educational Rights and Privacy Act (FERPA) protects Rights and Privacy Act (FERPA) protects confidentiality of student records.confidentiality of student records.

This act, commonly referred to as the This act, commonly referred to as the Buckley Amendment, was enacted by the Buckley Amendment, was enacted by the Congress in 1974 to guarantee parents Congress in 1974 to guarantee parents and students a certain degree of and students a certain degree of confidentialityconfidentiality and and fundamental fairnessfundamental fairness with respect to the maintenance and use with respect to the maintenance and use of student records.of student records.


The law is designed to ensure that The law is designed to ensure that certain types of personally certain types of personally identifiable information regarding identifiable information regarding students will not be released without students will not be released without parental consent. parental consent.

If a student is 18 years of age or If a student is 18 years of age or attends a post secondary institution, attends a post secondary institution, parental consent is not required. parental consent is not required.


Since P.L. 93-380 is a federal statute, Since P.L. 93-380 is a federal statute, it applies to school districts and it applies to school districts and schools which receive federal funds. schools which receive federal funds.


Sanctions for Violating Family Sanctions for Violating Family Privacy RightsPrivacy Rights

An excerpt of the FERPA Act states the An excerpt of the FERPA Act states the following: following:

At a minimum, the school district should At a minimum, the school district should provide, on an annual basis, information provide, on an annual basis, information to parents, guardians and eligible to parents, guardians and eligible students regarding the content of the students regarding the content of the law and inform them of their rights to law and inform them of their rights to file complaints with the Rights and file complaints with the Rights and Privacy Act Office of the Department of Privacy Act Office of the Department of Education.Education.


If non-English-speaking parents are If non-English-speaking parents are affected, the district has a affected, the district has a responsibility to notify them in their responsibility to notify them in their native language. native language.


Rights of ParentsRights of Parents

Parents or legal guardians have the Parents or legal guardians have the right to inspect their child’s record. right to inspect their child’s record.

A school official should be present to A school official should be present to assist a parent or guardian in assist a parent or guardian in interpreting information contained in interpreting information contained in the files and to respond to questions the files and to respond to questions which may be raised during the which may be raised during the examination process. examination process.


Rights of Noncustodial ParentsRights of Noncustodial Parents

Occasionally, controversy arises Occasionally, controversy arises regarding the rights of a noncustodial regarding the rights of a noncustodial biological parent to access his or her biological parent to access his or her child’s educational records.child’s educational records.

School or district policy should School or district policy should provide guidance in these situations.provide guidance in these situations.


Rights of Eligible StudentsRights of Eligible Students

The student may exercise the same The student may exercise the same rights afforded parents or guardians, rights afforded parents or guardians, if he or she has reached the age of if he or she has reached the age of 18 or is enrolled in a post secondary 18 or is enrolled in a post secondary institution.institution.


Rights of School PersonnelRights of School Personnel

Teachers, counselors and Teachers, counselors and administrators who have a legitimate administrators who have a legitimate educational interest in viewing records educational interest in viewing records may do so.may do so.

A written form which must be A written form which must be maintained permanently with the file maintained permanently with the file should indicate specifically what files should indicate specifically what files were reviewed by school personnel and were reviewed by school personnel and the date in which files were reviewed.the date in which files were reviewed.


In 1994, the In 1994, the FERPAFERPA was amended to was amended to emphasize that institutions are not emphasize that institutions are not prevented from maintaining records prevented from maintaining records related to a disciplinary action taken related to a disciplinary action taken against a student for behavior that against a student for behavior that posed a significant risk to the posed a significant risk to the student or others.student or others.


Enforcement of State or Federal Enforcement of State or Federal StatutesStatutes

Federal officials and state officials Federal officials and state officials may inspect files without parental may inspect files without parental consent in order to enforce federal or consent in order to enforce federal or state laws or to audit or evaluate state laws or to audit or evaluate federal education programsfederal education programs..


In these cases, personally identifiable In these cases, personally identifiable information may not be associated information may not be associated with any student unless Congress, by with any student unless Congress, by law, specifically authorizes federal law, specifically authorizes federal officials to gather personally officials to gather personally identifiable data.identifiable data.


Authorized representatives who may Authorized representatives who may access records include: access records include:

(1) the Comptroller General of the (1) the Comptroller General of the United StatesUnited States

(2) the Secretary (2) the Secretary

(3) an administrative head of an (3) an administrative head of an educational agencyeducational agency

(4) state and educational authorities.(4) state and educational authorities.


PrivilegePrivilege

On many occasions, school personnel On many occasions, school personnel are requested to provide either oral are requested to provide either oral or written information regarding a or written information regarding a student, some of which might be student, some of which might be contained in the student’s file. contained in the student’s file.


When such requests are made and When such requests are made and school personnel respond in a school personnel respond in a truthful and reasonable manner in truthful and reasonable manner in accordance with their prescribed accordance with their prescribed duties, they are protected by duties, they are protected by qualified privilegequalified privilege..


Good FaithGood Faith

Qualified privilege is based on the Qualified privilege is based on the premise that the educator is premise that the educator is operating in operating in good faithgood faith. .

When damaging or sensitive When damaging or sensitive information is communicated to information is communicated to others who have no need to know, others who have no need to know, good faith has been violated. good faith has been violated.


Good faith requires that a legitimate Good faith requires that a legitimate purpose be served by purpose be served by communicating the information.communicating the information.

Common interest in the student’s Common interest in the student’s well being would constitute a well being would constitute a legitimate purpose.legitimate purpose.


Acts of MaliceActs of Malice

Malice Malice exists when there is intent to exists when there is intent to harm or injure another. harm or injure another.

When statements are communicated When statements are communicated about a student either written or about a student either written or orally with the intent to injure his or orally with the intent to injure his or her reputation, a tortious act has her reputation, a tortious act has occurred, especially if these occurred, especially if these statements are false. statements are false.


TruthTruth is a defense for liability, if no is a defense for liability, if no malicious intent is present. malicious intent is present.

School personnel should exercise School personnel should exercise care in ensuring that statements care in ensuring that statements communicated to others are free of communicated to others are free of malice, based on defensible evidence malice, based on defensible evidence and communicated in a professional, and communicated in a professional, non-biased and truthful manner. non-biased and truthful manner.

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Copyright © Allyn & Bacon 2008 Chapter 7 Liability and Student Records This multimedia product and its contents are protected under copyright law. The