OAG 93-5


January 28, 1993




Hon. Kimberly S. McCann

VanAntwerp, Monge, Jones & Edwards

P.O. Box 1111

Ashland, Kentucky 41105-1111

Dear Ms. McCann:

As legal counsel for the Boyd County Board of Education you have written our office regarding the accessibility of confidential student records by the parent members of a School Based Decision Making Council and parents on committees established pursuant to KRS 160.345(2)(d). In response to your inquiry we will discuss the requirements of the federal laws governing disclosing students' records and also the educational duties of a School Based Decision Making Council.

FERPA

The Family Educational Rights and Privacy Act (FERPA) is a federal law which protects a student's privacy interests in education records. 20 U.S.C § 1232g. FERPA, also referred to as the Buckley Amendment, is administered by the United States Department of Education. The regulations accompanying FERPA define "education records" as records that are directly related to a student and maintained by an educational agency or institution or a party acting for the agency or institution. 34 CFR 99.3 "Education records."

As a general rule FERPA requires that an educational agency obtain prior written consent from a parent before disclosing information from the education records of his or her child. However, this consent is not necessary if the disclosure of the records is to other school officials within the educational agency or institution whom the agency or institution has determined to have a legitimate educational interest. 34 CFR 99.31(a)(1).

An educational agency or institution must adopt a written policy addressing how the educational agency or institution will implement the requirements of FERPA. This policy must include the criteria used to determine who is a "school official" and what is a legitimate educational interest. 34 CFR 99.6(a)(4). See also OAG 80-33.

SCHOOL BASED DECISION MAKING COUNCILS

By July 1, 1996 all Kentucky public schools must implement School Based Decision Making. KRS 160.345(5). There are only a few statutory exceptions whereby a school can opt out of School Based Decision Making. KRS 160.345(5). The School Based Decision Making Council shall be composed of two parents elected by the school's parent teacher organization, three teachers elected by the faculty and one principal or administrator. KRS 160.345(2)(a) and (b).

Each School Based Decision Making Council will make decisions regarding the education of the students at the school. The school council determines which textbooks, instructional materials and student support services shall be provided to the school subject to available resources and state guidelines. KRS 160.345(2)(h). Additionally, pursuant to KRS 160.345(2)(j) the school council adopts policies to be implemented by the principal in the following areas:

1. Determination of curriculum, including needs assessment and curriculum development.

2. Assignment of all instructional and non-instructional staff time;

3. Assignment of students to classes and programs within the school;

4. Determination of the schedule of the school day and week, subject to the beginning and ending times of the school day and school calendar year as established by the local board;

5. Determination of use of school space during the school day;

6. Planning and resolution of issues regarding instructional practices;

7. Selection and implementation of discipline and classroom management techniques, including responsibilities of the student, parent, teacher, counselor, and principal;

8. Selection of extracurricular programs and determination of policies relating to student participation based on academic qualifications and attendance requirements, program evaluation, and supervision; and

9. Procedures, consistent with local school board policy, for determining alignment with state standards, technology utilization, and program appraisal.



DISCUSSION

First we will address the issue of the ability of school council members to have access to student's records without the prior consent of the parent of the student. Pursuant to KRS 160.345 the School Based Decision Making Council has the duty to make educational decisions regarding individual students and the school as a whole. In order to achieve the educational goals envisioned by the Kentucky Education Reform Act (KERA) the school council must be intricately aware of the grades, test scores and special needs of the students attending the school. Therefore, in order to carry out their statutory duties we believe that all of the members of the School Based Decision Making Council may be considered "school officials" for purposes of FERPA.



Before any confidential student's records may be released to the members of the school council the local school district or school must adopt a policy as required by FERPA finding that the administrator or principal, teacher and parent members of a School Based Decision Making Council are "school officials" pursuant to 20 U.S.C. 1232g(b)(1)(A). The policy must define the "legitimate educational interests" of the school council members. 34 CFR 99.6(a)(4). We have enclosed a model student records policy supplied by the United States Department of Education for your reference.

You have also inquired whether any student records are accessible by the subcommittees of the school council. KRS 160.345(2)(d) provides that the certified staff members at a school may participate in committees according to their area of interests and may submit their recommendations to the school council. This subsection provides:

All certified staff at a school may be participants in the school-based decision making. The staff may divide into committees according to their areas of interest, such as, but not limited to, grouped grade levels, subject areas, and special programs. Each committee shall elect by a majority of the committee a chair, who shall serve for a term of one (1) year. The committee shall submit its recommendations to the school counsel for consideration.

KRS 160.345(2)(d).

In OAG 92-57 we held that KRS 160.345(2)(d) provides only that certified teachers may participate on the committees. However, we stated that the local school board may enact a policy allowing parents to be members of these committees. OAG 92-57; KRS 160.345(2)(e).



It appears reasonable for the local school district or school to have a policy pursuant to FERPA which determines that teachers are "school officials" and may have access to students' records. Teachers are employed to instruct the students and have an obvious need to have information regarding the progress and educational history of a student. Thus, the certified staff on a committee may be authorized to examine the records of the students if the appropriate FERPA policy is enacted.

Even if the local board adopted a policy allowing parents to be members of the committees referred to in KRS 160.345(2)(d) we do not see how these parents may be determined to be "school officials" with a "legitimate educational interest." 34 CFR 99.6(a)(4). Unlike the School Based Decision Making Council, the committees referred to in KRS 160.345(2)(d) are only advisory and do not have ultimate decision making responsibility. The danger in enacting so broad a policy interpreting "school officials" is that the intent of the Family Educational Rights and Privacy Act will be disregarded. Additionally, a school could lose its federal funding if a violation of FERPA has occurred. Thus, we cannot advise a local school district or a school to adopt a policy determining that parent members of a committee formed pursuant to KRS 160.345(2)(d) are "school officials" and entitled to access of confidential student records.

You also ask if the committee members may be included within the exception listed in 20 U.S.C. 1232g(b)(1)(F) and review the students' records. This subsection allows certain organizations to review students' records and provides:

(F) organizations conducting studies for, or on behalf of, educational agencies or institutions for the purpose of developing, validating, or administering predictive tests, administering student aid programs, and improving instruction, if such studies are conducted in such a manner as will not permit the personal identification of students and their parents by persons other than representatives of such organizations and such information will be destroyed when no longer needed for the purpose for which it is conducted. . . .

Whether a particular committee or committee member is encompassed within the parameters of subsection F must be decided on a case by case basis. It is up to the local educational agency or institution to determine if the specific parent members of the committees are included within this exception and the members are conducting studies for purposes of developing, validating or administering predictive tests or improving instruction. However, if the local school district determines that the parent members of the various committees should be included within this exception then the district must adopt an appropriate policy consistent with FERPA.

The final arbiter to determine who may be included within the exceptions listed in 20 U.S.C. 1232g(b)(1) is the United States Department of Education. If you have further questions regarding an interpretation of FERPA you may wish to contact the Family Policy Compliance Office, United States Department of Education, Washington, D.C.

Sincerely yours,

Chris Gorman

Attorney General



Lynne Schroering

Assistant Attorney General