Chapter Seven: Liability and Student Records

Overview
Rights of School Personnel
There are several laws regulating student records and their release. The primary purpose of
having school records is to help school personnel develop educational programs to meet the
needs of students. These records are used to develop programs, create individualized instruction,
determine grade placements, and even college admission. They are sensitive in nature because
they contain personal information such as: family background, health records, progress reports,
psychological data, state test results, and other confidential material. FERPA is the primary law
protected educational records. The laws primary function is the ensure that information is not
release without parental consent. By law, schools are required to notify parents of their FERPA
rights annually. Directory information, such as name, address, telephone number, and date of
birth can be provided to newspapers and military personnel. but parents can opt out.
Parental Right: Parents always have the right to review and inspect their childs records. They
can also challenge the accuracy of records. If the school and the party cannot agree on amending
the challenged section, parents are entitled to a hearing and can bring a lawyer. If there is still no
change to the document, parents can write an explanation and have it added to the educational
record. Parents and students also have the right to be notified when judicial order requests
educational files.
Viewing Privilege: Teachers, counselors, and administrators who have a legitimate educational
interest in viewing records may do so.
Retrieval Record: A written form, permanently in file, should indicate specifically what files
were reviewed and the date they were reviewed.
FERPA: The law was amended to emphasize that institutions are not prevented from maintaining
records related to a disciplinary action taken against a student for behavior that posed a
significant risk to the student or others. School officials are permitted to disclose information
regarding disciplinary action to school officials in other schools that have a legitimate
educational interest in the behavior or students.
Notice of Proposed Rulemaking (NPRM): outlines proposed amendments to FERPA. Those
include stronger enforcement authority, better safety of students, and ensuring the effectiveness
of publicly funded programs by defining education program and authorized representative.
Rights of Noncustodial parents: under FERPA schools should make educational records
accessible to both parents of each child where both parents are interested in the childs welfare.
Parents even if they are noncustodial parents, must contain rights of the child to be able to obtain
access of student records.
Rights of Eligible Students: when a student is eighteen or is enrolled in a postsecondary
institution he/she has a right to: inspect confidential records; challenge the accuracy of
information; determine individuals that are able to access their personal files; receive a copy of
their personal file; have the same due process provisions

Rights of School Personnel: teachers, counselors, and administrators who have a legitimate
educational interest in viewing records may do so. A written form must be maintained
permanently with the file stating what file was reviewed and the date.
Digitizing Student Records: The digitalization of records should present minimal concerns so
long as proper controls are implemented to maintain records and assure confidentiality as well as
student privacy rights protection.
Confidentiality Issues Involving School Counselors: Different states have different protection
rights for counselors.
Enforcement of State or Federal Statutes: Federal and state officials may inspect files without
parental consent in order to enforce federal or state laws or to audit or evaluate federal education
programs.
No Child Left Behind Act of 2002
*Annual Notification Requirements - The Secretary of Education is now required to annually
inform each state education agency as well as each local education agency of their obligations
under FERPA and PPRA.
*Transfer of School Disciplinary Records - FERPA permits schools to transfer any and all
records on students who transfer to another school. New provisions require procedures to
facilitate the transfer of disciplinary records.
*Armed Forces Recruiter Access - Schools are required to disclose directory information of
students to military personnel for the use of recruitment and scholarship programs.
*Student Privacy and Physical Exams - NCLB gives parents more rights when it comes to
collecting information of students for marketing purposes and certain nonemergency medical
examinations.
Defamation Involving School Personnel: Defamation occurs when school personnel distribute
sensitive information of students to unauthorized persons and perceptual injury occurs.
*Slander - Slander is defined as oral defamation. For example, school personnel inadvertently
communicate sensitive and damaging information contained in student files to a third party.
*Libel - Libel is written defamation. Any information recorded in a students file should be
factual and specific with respect to serious infractions committed by the student. ie: date, time,
witnesses.
*Privilege - When school personnel and a third party recipient of student information have a
common interest (counselors, subject matter teachers, and administrators), both parties are
protected under qualified privilege.
*Good Faith - Qualified privilege is based on the premise that the educator is operating in good
faith. This means information is shared for a legitimate purpose and is not done so with the
intent to damage the student.
Malice exists when there is intent to harm or injure another person.
Implied malice- The offender has no defense for conveying harmful information

 Actual malice- The offended person must demonstrate that the person making the offensive
comment had a motive for doing so and that this motive was calculated to generate ill will
against the offended person.

Landmark Cases, Pertinent Legislation, and Supporting Material

Owasso ISD v Falvo: The Supreme Court Ruled that peer grading does not violate FERPA.
Doe v Gonzaga: The courts enforced that students and parents may not sue for damages under 42
U.S.C. & 1983 to enforce provisions of FERPA.
Zall v. State: While the Sixth Amendment requires that a defendant receive material evidence, it
is the courts role to determining material evidence. Therefore, personal files of students may
be withheld from evidence during trial.

Application for Administrators and School Districts

School district policies should address the issues of enforcement of state and federal statutes so
that parents, guardians, and eligible students are informed of the exceptions
Student records do not include curriculum such as tests or tests booklets until they contain
identifying students marks (are completed).
Student information that is considered sensitive should be handled delicately and not shared
unless absolutely necessary or is relevant in achieving common goals.
School districts and officials should have legally defensible policies and procedures consistent
with the requirements of FERPA. Students, parents, and legal guardians should be informed of
their rights under this act.
School personnel should avoid labeling children.
Refrain from releasing information over the telephone, unless identity of the other party has been
firmly established.