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at Advocates for Children

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New York, NY 10001

TEL 800.388.2014
FAX 212.807.6872

PLEASE NOTE: In some cases, certain information on this page may not be current.

Important changes related to McKinney-Vento were included in the Every Student Succeeds Act of 2015 (ESSA). The changes went into effect October 1, 2016, and include: expanded transportation protections until the end of the school year for temporarily housed students who move into permanent housing, the inclusion of preschool in the definition of "school of origin" (children can stay in their school of origin and receive transportation to that school), and changes to the dispute resolution process which include the provision of all McKinney-Vento related services (for example, continued enrollment and transportation) until a final decision is issued. For more information about ESSA changes to the McKinney-Vento Act, see the State Education Department's Field Memo regarding Implementation of Changes to McKinney-Vento Homeless Act as a Result of Passage of Every Student Succeeds Act.

Please continue to check here for updated information about how new laws will impact policies and procedures in New York State, and as always, feel free to contact NYS-TEACHS at 800-388-2014 with any questions you may have.

FAQs: Privacy of Student Records

What is FERPA?

FERPA is the Family Educational Rights and Privacy Act of 1974. It is a federal law that mandates that educational agencies and institutions that receive funding under a program administered by the U.S. Department of Education must 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 prior to the disclosure of these records, unless the student is 18 years old or older. Schools must treat information about a homeless child's or youth's living situation as a student education record, subject to all of the protections 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 maintained by the LEA (local educational agency) or educational institution. (See, "Forum Guide to Protecting the Privacy of Student Information: State and Local Education Agencies", U.S. Dept. of Education, National Center for Education Statistics.) 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) provides heightened privacy protections for students in temporary housing. Under the newly reauthorized 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. 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. Education, 34 C.F.R. § 99.3 (2010).

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

If that adult is caring for the student on a day-to-day basis, s/he may be considered a "parent" under FERPA and can access the student's education records and provide consent for disclosures under FERPA. ("Family Educational Rights and Privacy Act (FERPA) and the Disclosure of Student Information Related to Emergencies and Disasters." (Jun. 2010), U.S. Dept. of Education.)

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 are under the age of 18 (Once a student turns 18, the rights afforded to his or her parents under FERPA transfer to that student) 20 U.S.C. § 1232g (d). FERPA permits elementary and secondary schools to provide students under 18 the opportunity to inspect and review his or her education records. 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." ("US Department of Education Issues New Guidance on Accessing Student Records Under FERPA," The Beam, (National Association for the Education of Homeless Children and Youth, Jul. 2010), quoting "Family Educational Rights and Privacy Act (FERPA) and the Disclosure of Student Information Related to Emergencies and Disasters." (Jun. 2010), U.S. Dept. of Education.)

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 detailed 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. Family Educational Rights and Privacy Act, 20 U.S.C. § 1232g.

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

Not without a parent's or youth's permission. Schools and districts cannot discuss or reveal information included in student records, including anything related to housing status, with anyone not involved in the student's education, without parental permission. (Family Educational Rights and Privacy Act, 20 U.S.C. § 1232g (b)(2)(A.) Parties entitled to a student's information without parental permission include school employees such as homeless liaisons, attendance officers, principals and teachers. Family Educational Rights and Privacy Act, 20 U.S.C. § 1232g(b)( 1)(A).

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