Presented by: Sherman R. Garnett Unwritten vs. The Law Are you current and well versed in the area...

Student Records Everything You Wanted To Know

But Were Afraid To Ask

Presented by:

Sherman R. Garnett

Unwritten vs. The Law

Are you current and well versed in the area of student records? Is it permissive to place the IEP of a current or former special education student in the student cumulative file or deny a separated, never married, or divorced parent the right in accessing student records?

This interactive session will delve in this issue and many other records issues that site and district level administrators face daily. Participants will be quizzed/challenged regarding their current practices to ensure compliance with the Family Education Rights Privacy Act (FERPA). Additionally, sample policies and procedures will be discussed and recommended to participants to ensure that the rights of all students and parents are being adhered.

Past Practices

1. Any current public school student who has completed Grade 10 may access their records regardless of their age without parent permission.

2. All parents who sign the personal beliefs immunization exemption card for their child must consult with and show evidence of meeting with a health practitioner before the student can be accepted for admission at the school site.

3. A comprehensive high school student who has been identified as homeless and exits the school prior to the completion of the school semester must be issued partial credits.

4. A public or private school in California must forward the records of a student within five business days upon request by the new school district.

Garnett’s Top Ten Records Issues Quiz

Ok, can you answer the questions below without hesitation? They are either totally TRUE or totally FALSE. If the answer is false, please provide an explanation. Good Luck!

5. An IEP cannot be videotaped by the parent/guardian unless the school district agrees and the parent indicates their intent to record with a twenty four hour notice to the school district.

6. All teachers at the school site must be notified of a new student’s previous suspension/expulsion history upon receipt of the student’s cumulative file.

7. A copy of a birth certificate must be placed in the cumulative file and used as a form of proof of age for students enrolling in public schools in grades transitional Kindergarten, Kindergarten, and 1st grade only.

8. Parents of a current high school student who has attained the age of 18 do not have the right to access the student’s records.

9.


9. Non custodial parents are not entitled to student records unless permission is granted via a court order.

10. Special Education records such as IEPs, authorizations, etc are never to be kept in a student’s cumulative file. They are to be placed in a separate confidential away from the school site.


Key Student Records Issues (FERPA)

1. Creation of Documents

2. Age Requirements/ Non Custodial Parents/ 18 year olds/ Step Parents

3. Grades/ Credits/ Transcripts/ IDEA/504/ Charging of Fees

4. Removal/ Challenging of Records

5. Use of Non- Attorney Advocates in Complaint Representation Process

6. Teacher and Administrator Personal Notes

7. Records to Law Enforcement

8. Primary Language

9. Treatment Records/ Immunization Records

10. Maintenance of Records/ Destruction of Records/ State Regulations

11. On- Going Standing Requests

12. Withholding Records

13. NCLB Required Issues/ Transfer of Records

14. Required Annual Notification/ HOW????

15. Directory Information/ Military

16. Private Schools/ Charter Schools

17. Test Protocols

18. Discipline Records

19. Birth Certificates

20. Custodial Court Orders

Who is Homeless?

According to the McKinney-Vento Homeless Assistance Act 42 U.S.C. 11435(2). ***See 725. Definitions-for purpose of this subtitle-

(2) The term “homeless children and youth”-

(A) means individual who lacks a fixed, regular and adequate nighttime residence [within the meaning of Section 103 (a)(1)] and

(B) includes-

(i) children and youths who are sharing the housing of other persons due to loss of housing, economic hardship, or a similar reason; are living in motels, hotels, trailer parks, or camping grounds due to lack of alternative adequate accommodations; are living in emergency or transitional shelters; are abandoned in hospitals; or are awaiting foster care placements

Rights

(1) Immediate enrollment even without proof of residency, immunizations, school records, or other papers;

(2) Stay in their school even if they move;

(3) Get transportation to school;

(4) Go to pre-school programs;

(5) Get all the school services they need;

(6) Have disagreements with schools settled quickly; and

(7) Go to the school they choose while disagreement is settled.

McKinney-Vento 2001 ReauthorizationRights of Students Living in Homeless

Situation

AB 2109 (Effective January 1st, 2014)

Requires letter or affidavit to document which required immunizations have been given and which have not been given on the basis that they are contrary to the parent or guardian’s or other specified person’s beliefs.

Requires the letter or affidavit to be accompanied by a form prescribed by the State Department of Public Health that includes a signed attestation from a health care practitioner, as defined, that indicates that the health care practitioner provided the parent or guardian of the person, the adult who has assumed responsibility for the care and custody of the person, or the person, if an emancipated minor, who is subject to the immunization requirements with information regarding the benefits and risks of the immunization and the health risks of specified communicable diseases.

Requires the form to include a written statement by the parent, guardian, other specified persons, or person, if an emancipated minor, that indicates that he or she received the information from the health care practitioner.

Immunizations

Title 5 Section 432 California Code of Regulations

The principal of each school shall keep on file a record of enrollment and scholarship for each pupil currently enrolled in said school.

(Method of verification of birth date)

Birth Certificate

Section 49068.5

Upon the initial enrollment of a pupil in a public or private elementary school; or whenever an elementary school pupil (a) transfers from one school district to another, (b) transfers to an elementary school within the same district, (c) transfers from one private elementary school to another, (d) transfers from a private elementary school to a public elementary school, or (e) transfers from a public elementary school to a private elementary school, the principal of the school that child enters or to which he or she transfers is urged to check to see if the child resembles a child listed as missing by the bulletins provided by the Department of Justice pursuant to Section 14201 of the Penal Code.

Are you compliant with this law?

Enrollment or Transfer of Pupils;Examination of Missing Children’s Bulletins

by School Officials

Education Code 38319

(a) Public primary schools shall post at an appropriate area restricted to adults information regarding missing children provided by the Department of Justice pursuant to Section 14208 of PC.

(b) Public secondary schools shall post at an appropriate area information regarding missing children provided by the Department of Justice pursuant to Section 14208 of PC. AM. 1999

Missing Children

Education Code 49068.6

(b) Every school notified pursuant to this section shall place a notice that the child has been reported missing on the front of each missing child’s school record. For public schools this shall be in addition to the posting requirements set forth in Section 38139.

(d) If a school receives a record inquiry or request from any person or entity for a missing child about whom the school has been notified pursuant to this section, the school shall immediately notify the law enforcement authorities who informed the school of the missing child’s status.

Missing Children; Notice; Posting on School Site

Education Code 48204.1

(a) A school district shall accept from the parent or legal guardian of a pupil reasonable evidence that the pupil meets the residency requirements for school attendance in the school district as set forth in Sections 48200 and 48204. Reasonable evidence of residency for a pupil living with his or her parent or legal guardian shall be established by documentation showing the name and address of the parent or legal guardian within the school district, including, but not limited to, any of the following documentation;

(1) Property tax payment receipts(2) Rental property, contract, lease, or payment receipts(3) Utility service contract, statement, or payment receipts(4) Pay stubs(5) Voter registration(6) Correspondence from a government agency(7) Declaration of residency executed by the parent or

legal guardian of a pupil

Residency

California Education Code 49408

For the protection of a pupil’s health and welfare, the governing board of a school district may require the parent or legal guardian of a pupil to keep current at the pupil’s school of attendance, emergency information including the home address and telephone number, business address and telephone number of the parents or guardian, and the name, address and telephone number of a relative or friend who is authorized to care for the pupil in any emergency situation if the parent or legal guardian cannot be reached.

Emergency Care

Family Code 6550

(a) A caregiver’s authorization affidavit that meets the requirements of this part authorizes a caregiver 18 years of age or older who completes items 1-4, inclusive, of the affidavit provided in Section 6552 and signs the affidavit to enroll a minor in school and consent to school-related medical care on behalf of the minor. A caregiver who is a relative and who completes items 1-8, inclusive, of the affidavit provided in Section 6552 and signs the affidavit shall have the same rights to authorize medical care and dental care for the minor that are given to guardians under Section 2353 of the Probate Code. The medical care authorized by this caregiver who is a relative may include mental health treatment subject to the limitations of Section 2356 of the Probate Code.

Caregiver

The affidavit addresses school enrollment, work permit request, and emergency medical treatment

(ONLY).

Note: The caregiver will not be allowed to access the student’s record.

Rights


When 15 percent or more of the pupils enrolled in a public school that provides instruction in kindergarten or any of grades 1 through 12 speak a single primary language other than English, as determined from the census data submitted to the Department of Education pursuant to Section 52164 in the preceding year, all notices, reports, statements, or records sent to the parent or guardian of any such pupil by the school or district shall, in addition to being written in English, be written in such primary language, and may be responded to either in English or the primary language.

Note: this includes due process letters, suspension, and expulsion forms.

Primary Language

Access to parents shall be provided within five business days, during school hours. (Education Code 49069)

Persons, agencies, or organizations not afforded access rights may be granted access only through written permission of the adult student or the parent. (Education Code 49075)

Access to student records and information shall not be denied to a parent because he/she is not the child’s custodial parent. (Family Code 3025)

Those granted access are prohibited from releasing information to another person or agency without written permission from the parent or adult student (age 18 or older). (Education Code 49076)

Certificated personnel will be available to interpret records where appropriate. (Title 5, Section 431)

Access to Records

“Directory Information”: Information contained in an education record of a student that would not generally be considered harmful or an invasion of privacy if disclosed.

Includes, but is not limited to:

1. Pupil’s Name

2. Address

3. Telephone Number

4. Date of Birth

5. E-mail Address

6. Major Field of Study

7. Participation in officially recognized activities and sports

Who Can Access Records?Directory Information

7. Participation in officially recognized activities and sports8. Weight and height of member of athletic teams9. Date of Attendance10. Degree and Awards11. The most recent previous public or private school attended by the pupil


School districts shall adopt a policy identifying those categories of directory information as defined in subdivision (c) of Section 49061 which may be released. The district shall determine which individuals, officials, or organizations may receive directory information. However, no information may be released to a private profit making entity other than employers, prospective employers, and representatives of the news media, including, but not limited to, newspapers, magazines, and radio and television stations.

Pupil Directory Information

The Act amends the Family Educational Rights Privacy Act (FERPA), 20 U.S.C. § 1232g; 34 CFR Part 99, to permit educational agencies and institutions to disclose a student’s education records, without parental consent, to a caseworker or other representative of a State or local child welfare agency or tribal organization authorized to access a student’s case plan “when such agency or organization is legally responsible, in accordance with State or tribal law, for the care and protection of the student.”

Uninterrupted Scholars Act(Public Law 112-278)


(5) Parents of a pupil 18 years of age or older who is dependent as defined in Section 152 of the Internal Revenue Code of 1954.

18 Year Olds

Sole Physical Custody

Joint Physical Custody

Sole Legal Custody

Joint Legal Custody

Adoptive Parent

Caregiver

Guardian Foster Parent/Group Home

Step Parent (if approved)

Custody Issues

Every restraining order situation is different, and therefore requires the administrators and staff to be flexible and exercise their best judgment.

If a parent provides the school with a copy of a restraining order, make a quick check to make sure it is valid and not expired.

1. The order must be signed by a judge to be valid2. Every restraining order contains an expiration date

If the school staff does not know the restrained individual, they may (but are not required to) ask for a photograph, which can be attached to the restraining order.

The restraining order may be kept in the student’s cumulative folder. A separate copy should be sent to the school district custodial or records.

If school staff knows or is informed that the restrained individual is on campus, the police should be contacted as soon as possible.

Have a copy of the restraining order available for the office when he or she arrives.

Restraining Orders

SUBPOENAS

Emancipation is an act by which a person who was once in the power of another, and is rendered free and is applicable to a person under age 18 (legal definition).

Emancipation may result from (1) valid marriage; (2) active duty with the armed forces of the United States; or (3) a court declaration.

The effects of emancipation are the relinquishment by the parents of their control and authority over the child, the conferring upon the child of a right to his own earnings, and the termination of the parents’ legal duty to support and educate the child.

Emancipated Minors: Must attend school Can challenge records Can sign permission slips such as attendance,

work permits, field trip requests, etc. Act in lieu of parent during teacher conferences, IEP, etc.

Emancipated Minors

For all first admissions and at kindergarten or first grade, a child should be enrolled under the name appearing on documentary proof of age acceptable for admission to school (EC 48002). School transfer records will establish the name for registration and placement purposes at other grade levels.

Parent Request

Custodial parents or legal guardians may request children be enrolled and known by a name differing from that on the legal verification of birth. Local policy may permit such action and prescribe procedures. Care should be given to avoid frequent or frivolous changes, as this becomes part of the pupil’s permanent record.

When a request is made for enrollment of a child under a name differing from documentary proof or established school records, the change should be supported by a signed request by the custodial parent. For name change for school purposes, a sample request form is provided on the next page. This document may be copied or revised for district use.

Name Changes

Birth certificates from Mexico indicate the last names of both parents in reverse order.

Example: On birth certificate – Juan Gonzales Ramirez

First last name is the Father’s (Gonzales)Second last name is the Mother’s (Ramirez)

Parent may request to enroll the student with the father’s last name or both last names as long as they match the birth certificate. Do not hyphenate two last names unless it is hyphenated on the birth certificate.

Mexican Birth Certificates


(b) If a pupil transfers from one public school to another or to a private school to a public school within the state, the pupil permanent record or a copy of it shall be transferred by the former public school or private school no later than 10 schooldays following the date the request if received from the public school or private school where the pupil intends to enroll.

Transfer of Permanent Enrollment and Scholarship Record

(2) The school district or private school shall notify the parent or guardian of the pupil in writing of the pupil’s alleged misconduct before withholding the pupil’s grades, diploma, transcripts pursuant to this subdivision. When the minor and parent are unable to pay for the damages, or to return the property, the school district or private school shall provide a program of voluntary work for the minor in lieu of the payment of monetary damages. Upon completion of the voluntary work, the grades, diploma, and transcripts of the pupil shall be released.

Withholding Records

Section 49076

(a) The governing board of each school district shall prescribe regulations requiring the evaluation of each pupil’s achievement for each making period and requiring a conference with, or a written report to, the parent of each pupil whenever it becomes evident to the teacher that the pupil is in danger of failing a course. The refusal of the parent to attend the conference, or to respond to the written report, shall not preclude failing the pupil at the end of the grading period.

(b) The governing board of any school district may adopt regulations authorizing a teacher to assign a failing grade to any pupil whose absences from the teacher’s class that are not excused pursuant to Section 48205 equal or exceed a maximum number which shall be specified by the board. Regulations adopted pursuant to this subdivision shall include, but not be limited to, the following:

1. A reasonable opportunity for the pupil or pupil’s parent or guardian to explain the absences.

2. A method for identification in the pupil’s record of the failing grades assigned to the pupil on the basis of excessive unexcused absences.

Regulations Regarding Pupil’s Achievement

Contents of a Cumulative File

Mandatory Permanent

(maintain permanently)

Mandatory Interim

(maintain 3 years after usefulness ceases)

Permitted(maintain 6 months after

usefulness ceases)vs. vs.

FERPA generally does not require schools to transfer records.

IDEA required that, the new district where the student enrolls has to take reasonable steps to promptly obtain the student’s records, including the IEP, any other records concerning the provision of special education or related services from the previous district where the student was enrolled.

Disciplinary records, which are considered education records under FERPA, the No Child Left Behind Act of 2001 at 20 USC 7165 requires state with assurances a procedure in place to “facilitate the transfer of disciplinary records, with respect to a suspension or expulsion, by local educational agencies to any public or private elementary school or secondary school for any student who is enrolled or seeks, intends or is instructed to enroll, on a full- or part-time basis in the school.”

Transfer of Records

The regulation at 34 CFR 99.31(a) (2) allow a school to disclose information from a student’s education record to another school (including a postsecondary institution) where the student seeks or intends to enroll. Of course, test scores are commonly disclosed using the exception. The disclosure is contingent on three conditions, described in 34 CFR 99.31(a), with which the school must comply:

1. The school must make a reasonable attempt to notify the parents (or eligible student) that it is making such disclosure, unless the disclosure is initiated by the parent (or eligible student), or if the schools annual required FERPA notice includes a provision that it forwards education records to other agencies or institutions that have requested the records in which the student seeks or intends to enroll. 34 CFR 99.31(a) (1)

2. The School must provide the parent with a copy of the record that was disclosed, if they request it. 34 CFR 99.31(a) (2)

3. The school must conduct a hearing to consider a parental request to amend the disclosed record, should they make such request. 34 CFR 99.31(a) (3)

Officials of Another School System Where Student Seeks to Enroll

FERPA allows parents who believe that their child’s education records contain information that is “inaccurate, misleading, or in violation of the student’s right of privacy” to ask the educational agency or institution to amend the record, (34 CFR 99.20 (a).) The agency then must decide whether to amend the record as requested within “a reasonable time” after it receives the request, (34 CFR 99.20 (b).) If the agency decides not to amend the record as requested, it must inform the parent or eligible student of its decision and of his of her right to a hearing on the matter, 34 CFR 99.20 (c). The right to a hearing is established under 34 CFR 99.21. Further regulation at 34 CFR 99.22 set out certain minimum requirements for the conduct of such hearing.

Right to Amend Educated Records

FERPA spells out 15 separate conditions under which prior parental consent is not required to disclose information to third parties:

1. To teachers or other districts officials that have a legitimate educational interest.34 CFR 99.31(a) (1)

2. To officials of another school system or school where the student seeks to enroll. 34 CFR 99.31(a) (2)

3. To authorized representatives of the Comptroller General of the United States, the Secretary of the Department of Education, or state and local educational authorities.

34 CFR 99.31(a) (3)

4. In connection with the application for receipt of financial aid. 34 CFR 99.31(a) (4)

5. To state and local juvenile justice systems or their officials. 34 CFR 99.31(a) (5)

6. To organizations conducting educational studies. 34 CFR 99.31(a) (6)

7. To accrediting organizations. 34 CFR 99.31(a) (7)

8. To parents of an eligible student who is considered a dependent student under the Internal Revenue Code. 34 CFR 99.31(a) (8)

Rights to Prevent Disclosure of Education Records

9. In compliance with a judicial order or lawfully issued subpoena. 34 CFR 99.31(a) (9)

10. In connection with a heath or safety emergency. 34 CFR 99.31(a) (10)

11. If designated as directory information. 34 CFR 99.31(a) (11)

12. To the parents (of a non-eligible student) or to an eligible student. 34 CFR 99.31(a) (12)

13. To an alleged victim of a crime of violence, disciplinary records maintained by postsecondary institutions concerning the alleged crime. 34 CFR 99.31(a) (13)

14. In connection with a disciplinary proceeding at an institution of post secondary education. 34 CFR 99.31(a) (14)

15. To the parent of a student at an institution of postsecondary education regarding the student’s violation of any Federal, State, or local law, or of any rile or policy of the institution, governing to use or possession of alcohol or a controlled substance. 34 CFR 99.31(a) (15)

Rights to Prevent Disclosure of Education Records

To organizations conducting educational studies. 34 CFR 99.1 (a)(6)

To accrediting organizations. 34 CFR 99.1 (a) (7)

To parents of an eligible student who is considered a dependent student under the Internal Revenue Code. 34 CFR 99.1 (a) (8)

In compliance with judicial order or lawfully issue subpoena. 34 CFR 99.1 (a) (9)

In connection with a heath or safety emergency. 34 CFR 99.1 (a) (10)

If designated as directory information. 34 CFR 99.1 (a) (11)

To the parents (of non-eligible student) or to an eligible student. 34 CFR 99.1 (a) (12)

Nonconsensual Disclosure

To teachers or other district officials who have a legitimate educational interest. 34 CFR 99.1 (a) (1)

To officials of another school system or school where the student seeks to enroll or has enrolled. 34 CFR 99.1 (a) (2)

To authorized representatives of the Comptroller General of the United States, the Secretary of the Department of Education, or state and local educational authorities. 34 CFR 99.1 (a) (3)

In connection with the application for or receipt of financial aid. 34 CFR 99.1 (a) (4)

To state and local juvenile justice system or their officials. 34 CFR 99.1 (a) (5)

FERPA Nonconsensual Disclosure to Records

FERPA regulations at 34 CFR 99.10 provide that schools must give a parent or eligible student the opportunity to inspect and review the student’s education records. This provision applies to any educational agency or institution, and state educational agency and its components. The district must comply with the request to access records “within a reasonable period of time, but not more than 45 days after it has received that request.” (34 CFR 99.10 (b).)

Right to Inspect and Review Education Records

FERPA grant parents (or eligible students) four specific rights:

1. The right to inspect and review the education records relating to the student maintained by the schools he or she has attended.

2. The right to challenge and require the school to amend any portion of the education records concerning the student that might be inaccurate, misleading or otherwise in violation of the student’s privacy rights.

3. The right to require the school to obtain written consent prior to the disclosure of personally identifiable information, expected in those instances specifically noted in the statute and regulations.

4. The right to receive notice of the rights afforded them by FERPA.

Right to Amend Education Records and Note Educated Records

Thank YouFor any question, please visit:

www.Sherman-Garnett-and-Associates.com

[email protected]

Presented by: Sherman R. Garnett Unwritten vs. The Law Are you current and well versed in the area...

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