The old adage “ignorance is bliss” does not usually gain much traction in schools (or law firms) that work to disseminate knowledge and information. We regularly field questions from schools about how much access board members can have to student records. The Family Educational Rights and Protections Act, commonly called FERPA, governs the analysis of these questions. At times, board members feel that access to student information is helpful to serve students. However, according to FERPA and the agencies that enforce it, the question should really come down to whether the access is necessary to serve students. In this context, the answer we often give board members is that ignorance really is bliss (so long as your definition of bliss is compliance with the law and receiving federal funds). In most cases, even the most well intentioned board members lack the requisite educational interest required to access student records under FERPA lawfully.
FERPA is a federal law that, among other things, protects the confidentiality of student records. With limited exceptions, FERPA requires signed and dated written consent from a parent or eligible student before a school can disclose personally identifiable information from the student’s “education records.” 34 CFR § 99.30. Education records include any records that directly relate to a student and are maintained by an educational agency or institution. Id. Personally identifiable information, or PII, includes information which can alone, or in combination, allow a reasonable person in the school community to identify the student with reasonable certainty. 34 CFR § 99.3.
Practically speaking, a student’s name on a grade report, down list, or discipline record would be protected PII from an education record. Other information included in a record, such as the student’s grade level, student ID number, address, or date of birth may also meet the definition of protected PII. For a board member to access student records that include PII, written consent is required unless the disclosure falls under one of the narrow exceptions. In this context, the most relevant exception would be the “school official exception.”
School Official Exception
FERPA provides several limited exceptions to the requirement that written consent be provided before a school can disclose PII from an education record. Under the school official exception, disclosure is permissible to other school officials so long as the school official is acting with legitimate educational interests. For purposes of FERPA, a board member is a school official. See U.S. Department of Education FERPA General Guidance for Students. To be eligible for the school official exception, a board member can only access education records containing PII for which there is a legitimate educational interest.
On its face, this may seem like a low threshold. However, in practice this standard is usually stringent. Each school is required to provide parents an annual notification of rights under FERPA. This notification should inform parents how the school defines “school official” and clearly articulate what the school considers a legitimate educational interest. See Letter to Heiligenthal, 16 FAB 10 (FPCO 2012). If you are a policy subscriber, you will soon be receiving updates that will bring your notice in compliance with this standard. The Department of Education advises that, generally, a school official “has a legitimate education interest if the official needs to review an education record in order to fulfill his or her professional responsibility.” See, FERPA General Guidance for Students (emphasis added). This standard has the approval of the Department of Education and appropriately protects student records from unnecessary exposure. The forthcoming update will more clearly refer to this standard in our model notification.
When applied, this standard usually excludes board members from being eligible for the school official exception. Given the usual responsibilities of board members, in most instances it is unlikely that the member would need to review an education record in order to fulfill his or her professional responsibility.
An example of when a board member would have a legitimate educational interest to access student records would be when a student appeals a disciplinary action. In this context, a board member, in order to fulfill his or her professional responsibility, would most likely need access to specific education records related to behavior and discipline. However, this educational interest probably would not extend to all of the student’s records.
An example of when a board member would lack a legitimate educational interest to access student records would be when a board member wishes to access grade reports that include names or other PII. It is difficult to think of a situation where a board member would need to access such records to fulfill his or her responsibilities.
Nebraska State Law
Interestingly, Nebraska state law in section 79-2,104 does not authorize board members to access any education records. However, the statute goes on to say that it does not preclude or prohibit the disclosure of student records so long as it would be authorized pursuant to FERPA.
As noted above, it is relatively rare for a school board member to have the requisite educational interest to access student records under the school official exception. Without meeting this exception, the parent or eligible student who the record refers to must expressly consent to disclosure in writing. While these restrictions on access can be frustrating for board members, and understandably so, the Department of Education has advised that school districts are best insulated from complaints when they limit their definition of legitimate educational interest. Board members, when it comes to student records, a good rule of thumb is that ignorance is bliss. When it comes to your legal obligations under FERPA, or any other issue, a good rule of thumb is to bring your questions to your school attorney, or call Karen, Steve, Bobby, or Tim.