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NYS-TEACHS
at Advocates for Children

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info@nysteachs.org


Frequently Asked Questions: Privacy of Student Records

What is FERPA?

FERPA is the Family Educational Rights and Privacy Act of 1974. It is a federal law that requires public schools to provide students with access to their educational records and some control over the disclosure of information from the records. In most cases, schools must have a parent's consent before sharing these records, unless the student is 18 years old or older. 20 U.S.C. § 1232g(b). Schools must treat information about a student in temporary housing's living situation as an educational record, which means that this information has privacy protection under FERPA. 42 U.S.C. § 11432 (g)(3)(G).

What are "student education records"?

Student education records are all records, files, documents and other materials containing information directly related to a student. These records are typically kept by the LEA (local educational agency) or educational institution. 20 U.S.C. § 1232g(a)(4)(A). A student's housing status (for example, whether the student is sharing the housing of others due to loss of housing) is considered to be a part of these records and is protected. 42 U.S.C. § 11432(g)(3)(G).

Is a temporarily housed student's living situation considered to be part of their educational records?

Yes, the Every Student Succeeds Act of 2015 (ESSA) increased the privacy protections for students in temporary housing. Under the new McKinney-Vento Act provisions in ESSA, information about a temporarily housed student's living situation is no longer considered "directory information," and such information must be provided with the same protections as other non-directory, personally identifying information contained in the student's education records under FERPA. 42 U.S.C. § 11432(g)(3)(G). For more information, please see Education for Homeless Children and Youths Program Non-Regulatory Guidance Title VII-B of the McKinney-Vento Homeless Assistance Act, as amended by the Every Student Succeeds Act, U.S. Department of Education, March 2017.

How does FERPA define "parent"?

"Parent" is defined as a parent of a student and includes a natural parent, a guardian, or an individual acting as a parent in the absent of a parent or guardian. 20 U.S.C. § 1232h(c)(6)(D).

What if an unaccompanied youth is living with an adult who is not their parent/guardian?

If that adult is caring for a student on a day-to-day basis, they may be considered a "parent" under FERPA and can access the student's education records and provide consent for disclosures under FERPA. 20 U.S.C. § 1232h(c)(6)(D).

Which educational records can an unaccompanied youth obtain without a parent/guardian?

Schools can give unaccompanied youth full access to their own records, even when the youth is under the age of 18 (Once a student turns 18, the privacy rights that the parents had under FERPA transfer to the student) 20 U.S.C. § 1232g(d). FERPA allows elementary and secondary schools to provide students who are under 18 the opportunity to inspect and review his or her education records. 34 C.F.R. § 99.5(b). Although FERPA does not require schools to provide unaccompanied homeless youth under 18 with access to these records, schools may use their judgment to determine "whether an unaccompanied minor is responsible enough to exercise certain privileges, such as inspecting and reviewing education records and providing consent for disclosure." "U.S. Department of Education, Family Educational Rights and Privacy Act (FERPA) and the Disclosure of Student Information Related to Emergencies and Disasters." (Jun. 2010).

Can a school release a student's educational records without parental consent?

Yes, if such a release is for the purposes of enrollment in a different school district or in the case of an unaccompanied youth as described above. Also, school officials with a "legitimate educational interest" may access student records. This generally refers to individuals in the school district who need to know information from the student's educational record in order to perform their professional responsibilities. 20 U.S.C. § 1232g(b)(1)(A).

Can a McKinney-Vento liaison provide information about a student's homeless designation to others within the district, such as teachers and administrators?

Sometimes. Schools must treat information about a homeless child's or youth's living situation as a student education record. This means that this information is protected as private under FERPA. 42 U.S.C. § 11432(g)(3)(G). Sharing student information is allowed when it is for the purpose of data collection or for the school district to meet the student's educational needs. School districts should also make sure that school personnel are aware of McKinney- Vento's protections and are trained to respectfully manage this sensitive information.

Can schools and/or districts call landlords, housing agencies, or employers to give or request information about a family's housing status?

No, not unless the school has a parent's or youth's permission ahead of time. Schools and districts cannot discuss or share information included in student records, including anything related to housing status, with anyone not involved in the student's education, without parental permission. 20 U.S.C. § 1232g(b)(2)(A). This protection was further strengthened by the reauthorization of McKinney-Vento under the Every Student Succeeds Act, adding housing status as a category of protected information, and explaining that housing information is not "directory information." 42 U.S.C. § 11432(g)(3)(G).

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