NOTE FROM KSB: We know the NSEA recently sent out a survey to its membership related to Senator Groene’s LB 147, which addresses the use of seclusion and restraint by staff. Although this blog post is about attendance and student records, the NSEA’s survey asks its members to relay experiences they have had with violent and disruptive students. This touches on many of the same FERPA concerns, especially in smaller communities where relaying an experience could indirectly identify the student involved and the contents of the student’s records. We have prepared this statement you can share with staff to remind them that although filling out the survey is their prerogative, they cannot directly or indirectly disclose personally identifiable information about students.
Now, onto the blog post and attendance...
Last week, Karen and Jordan had the pleasure of presenting at NCSA’s State Principals’ Conference, and the slides from that presentation can be found here. They talked about school district interactions and relationships with local law enforcement, and discussed the role of confidentiality in working with these agencies. It quickly became clear that lots of schools are involved in innovative collaborations with local law enforcement and other related juvenile justice agencies to address excessive absenteeism. As schools take advantage of these resources to improve the educational outcomes for their students, we want to make sure they also have the knowledge and resources necessary to maintain compliance with state and federal law.
Application of FERPA to Attendance Records
Under the federal Family Education Rights and Privacy Act, public schools may not disclose personally-identifiable information from a student record that is maintained by the school district unless the disclosure is pursuant to written parental consent or an exception to that consent. A student record includes materials that “contain information directly related to a student” and are “maintained by an education agency or institution.” 20 U.S.C. § 1232g(a)(4). A student's attendance record is FERPA-protected information. That means schools must either have parental consent or find an exception to FERPA before disclosing attendance records.
Specific Attendance Records Are NOT Routine Directory Information
FERPA does allow the disclosure of “routine directory information” – such as the student’s name, grade, and home address – as long as parents are given the ability to opt out of the directory. Unfortunately, attendance records may not be disclosed as routine directory information. Both courts and the U.S. Department of Education have held that the directory information exception does not contemplate the disclosure of specific dates of absence or attendance. See, e.g., Hirt v. Unified Sch. Dist. No. 287, 308 F. Supp. 3d 1157 (D. Kan. 2018); F.A.T. v. State, 690 So. 2d 1347 (Fla. Dist. Ct. App. 1997). Although schools can disclose the span of time a student was enrolled more generally, such as “from August 2014 until May 2018,” they cannot disclose the specific days in that range when a student was or was not at school.
Local Law Enforcement, Outside Juvenile Justice Agencies, and SROs Do Not Usually Meet the School Official Exception
FERPA does allow schools to disclose attendance records to outside agencies that qualify as a school official with a legitimate educational interest. This means, for example, that schools can report student attendance to the Nebraska Department of Education as part of AQuESTT reporting. Unfortunately, it is rare that a local law enforcement agency, an outside juvenile justice agency, or school resource officer will meet the requirements to be recognized as a “school official” under this exception. See, Letter to Jene Watkins, Indian Creek Local School District (FPCO 2008); Letter to Ms. Bresler and Mr. Molinaro (FPCO 2006).
In order for an outside agency to be considered a school official, the agency must: (1) perform an institutional function for which the district would otherwise use employees; (2) be under the direct control of the district with respect to the use and maintenance of the education records; and (3) be subject to the provisions of FERPA restricting the use and redisclosure of the records. Finally, any disclosure of records to a school official must be pursuant to a legitimate educational interest.
Based upon these requirements, there are several reasons why local law enforcement and other outside agencies rarely satisfy the school official exception. At the outset, if probation or diversion officers are accessing student attendance records to see if a student is meeting his/her obligations under those programs, they are accessing the student’s records for their own legal purposes, not an institutional educational function. The U.S. Department of Education advises that, generally, a school official “has a legitimate educational interest if the official needs to review an education record in order to fulfill his or her professional responsibility [to the school district].” FERPA General Guidance for Students (2015).
Not only must the outside agency have a legitimate educational interest in fulfilling an institutional function, but it must also be under the direct control of the school district. In the Discussion of the 2008 Amendments to the FERPA Regulations, which served as a preamble to the final publication of the regulations, the U.S. Department of Education provided the following explanation:
“The term direct control . . . is intended to ensure that an educational agency or institution does not disclose education records to an outside service provider unless it can control that party's maintenance, use, and redisclosure of education records. This could mean, for example, requiring a contractor to maintain education records in a particular manner and to make them available to parents upon request. . . This includes ensuring that outside parties that provide institutional services or functions as "school officials" . . . do not maintain, use, or redisclose education records except as directed by the agency or institution that disclosed the information. . . [O]ne way in which schools can ensure that parties understand their responsibilities under FERPA with respect to education records is to clearly describe those responsibilities in a written agreement or contract.”
Consequently, if a school district wishes to disclose records to an outside agency pursuant to the school official exception, we believe they should only do so pursuant to a clearly written contract or memorandum of understanding that offers the school district strict control over the outside agencies’ use, maintenance, and redisclosure of the records. Further, the outside agency must agree that they will not use or redisclose the records in any unauthorized manner. This means, for example, that if the local law enforcement agency received educational records pursuant to this exception, they could not use that information to prosecute a student or parents for truancy. Unfortunately, schools may find outside agencies reticent to agree to these terms (and we understand why).
The Records of a Law Enforcement Unit Are Not Subject to FERPA
As discussed in our prior blog post found here, school districts may designate any office or individual (including an SRO or school employee) as its “law enforcement unit” and disclose records which qualify as law enforcement unit records to other entities (like local police departments or juvenile justice agencies) at the school’s discretion. The records created by a law enforcement unit for a law enforcement purpose are not subject to the confidentiality requirements of FERPA, and may be disclosed without consent or satisfying an exception to consent.
A school district could develop practices and procedures whereby attendance records, or something similar like building entry logs, were created by a law enforcement unit for a law enforcement purpose. Such records could be disclosed to outside agencies at the district’s discretion. Schools should be aware, though, that designating a law enforcement unit is a complicated process that should not be undertaken lightly. This process would include amending board policy, providing notice to parents and students, modifying existing and future MOUs or agreements with local law enforcement for SROs, and developing strict record-keeping practices.
So what does this mean for you?
In summary, schools must be mindful that the provisions of FERPA protect the confidentiality of student attendance records. This means that these records should not be disclosed without written consent from the student’s parent unless an applicable exception is fully satisfied. The school official exception may apply in limited circumstances if the district maintains control over the maintenance, use, and redisclosure of student records the records are only used for legitimate educational purposes by someone serving an institutional function. Additionally, records created by a law enforcement unit are not subject to the same confidentiality requirements, but this exemption requires the district to undertake a careful and deliberate process to designate a law enforcement unit.
We do not want this information to make schools feel as though they must discontinue any relationships or collaborations with outside agencies to address attendance and truancy. However, the terms of these relationships should be memorialized in a formal, written agreement that appropriately addresses all aspects of the parties’ relationship, including the disclosure, use, and re-disclosure of student records. As the relationship is formalized, we may realize that some changes to operations are necessary to ensure technical compliance with the law, or to place the district in the best position to demonstrate compliance. If you already have an agreement in place, it should be reviewed by your school’s attorney to ensure that it remains effective under the most recent guidance from the U.S. Department of Education.
If your school is interested in providing outside agencies or officials with access to student attendance records to address truancy, we recommend you discuss it with your school’s attorney, or call Karen, Steve, Bobby, Coady, or Jordan.