Family Educational Rights and Privacy Act (FERPA)

FERPA protects the release of personally identifiable information within a student’s education record. 20 U.S.C. § 1232g(a)(4)(A).  FERPA defines a student’s education record as records, files, documents, and other material maintained by a school or a person acting for the school and containing information directly related to a student. 20 U.S.C. § 1232g(a)(4)(A). As a general rule, FERPA states that a minor child’s educational records can be reviewed and released only by the child’s parents, guardians, or persons standing in loco parentis to the child, or, for a child 18 or over, the youth him or herself. 20 U.S.C. § 1232g(a)(1)(A).  In most cases, to share students’ education records, schools must obtain written consent from one of the aforementioned parties, 20 U.S.C. § 1232g(a)(4)(A); 20 U.S.C. § 1232g(d), but there are useful exceptions that may assist schools in responsibly sharing information with public or private-sector partners that can collect and analyze that information to evaluate the effectiveness of the educational programs in facilities and upon reentry.  FERPA specifically authorizes the sharing of education records without consent among "school officials," including teachers, within a school provided the school has determined that they have "legitimate educational interest" in the information.  Education records can also be shared with officials of other schools or school systems in which a student seeks or intends to enroll.  20 U.S.C. § 1232g(b)(1)(A) and (B). 

SHARING EDUCATION RECORDS UNDER THE JUVENILE JUSTICE EXCEPTION

State and local officials who have been authorized under their state law can access education records of students in the juvenile justice system under limited circumstances.  20 U.S.C. § 1232g(b)(1)E.  If the state’s statute was adopted before November 19, 1974, then the sharing of education records must “concern[] the juvenile justice system and such system's ability to effectively serve the student whose records are released.” If the state’s statute was adopted after November 19, 1974, then the sharing must concern the juvenile justice system's ability to effectively serve, prior to adjudication, the student whose records are released; and the officials to whom the information is disclosed must certify in writing to the educational agency or institution that the information will not be disclosed to any other party except as provided under State law without the prior written consent of the parent of the student.  20 U.S.C. § 1232g(b)(1)E.

In other words, for a school to release a student’s education records under the juvenile justice exception, all of the conditions in the statute must be fulfilled: (a) the youth has not yet been adjudicated delinquent under state law; (b) a state law specifically authorizes the disclosure; (c) the disclosure is to a state or local official, concerning the juvenile justice system’s ability to provide pre-adjudication services to a student; and (d) state or local officials certify in writing that the institution or individual receiving the information has agreed not to disclose it to a third party outside the juvenile justice agency unless authorized by state law.  Finally, states can further limit the release of education records to third parties. 20 U.S.C. § 1232g(b)(1)E.

At least 19 state statutes authorize this type of disclosure. In these states, education records can be shared at a variety of times, from the beginning of informal diversion up to the adjudication of the student. This exception does not apply to students post-adjudication, and therefore does not apply to the transfer of records from juvenile justice placements to a student’s home school. For that transfer of records, students must rely on state law and practice, their parents, or other exceptions to consent, such as school enrollment or transfer. When placement facility schools can’t or won’t send a student’s education records to the student’s local school through the enrollment exception, advocates must look to other FERPA exceptions such as a court order. 

FERPA governs access to and the release of education records by public and private schools that receive federal funding. 20 U.S.C. § 1232g. Therefore, any juvenile facility schools that receive federal funding must comply with FERPA.