§ 1232g.
Family educational and privacy rights
TITLE
20 > CHAPTER 31 > SUBCHAPTER III > Part 4 > § 1232g
( a ) Conditions for availability of funds to educational
agencies or institutions; inspection and review of education records;
specific information to be made available; procedure for access to
education records; reasonableness of time for such access; hearings;
written explanations by parents; definitions
( 1 )
( A ) No funds shall be made available under any applicable program
to any educational agency or institution which has a policy of denying, or
which effectively prevents, the parents of students who are or have been in
attendance at a school of such agency or at such institution, as the case may
be, the right to inspect and review the education records of their children.
If any material or document in the education record of a student includes information
on more than one student, the parents of one of such students shall have the
right to inspect and review only such part of such material or document as
relates to such student or to be informed of the specific information contained
in such part of such material. Each educational agency or institution shall
establish appropriate procedures for the granting of a request by parents for
access to the education records of their children within a reasonable period
of time, but in no case more than forty-five days after the request has been
made.
( B ) No funds under any applicable program shall be made available
to any State educational agency (whether or not that agency is an educational
agency or institution under this section) that has a policy of denying, or
effectively prevents, the parents of students the right to inspect and review
the education records maintained by the State educational agency on their children
who are or have been in attendance at any school of an educational agency or
institution that is subject to the provisions of this section.
( C ) The first sentence of subparagraph (A) shall
not operate to make available to students in institutions of postsecondary
education the following materials:
( i ) financial records of the parents of the student or any information
contained therein;
( ii ) confidential letters and statements of recommendation, which
were placed in the education records prior to January 1, 1975, if such letters
or statements are not used for purposes other than those for which they were
specifically intended;
( iii ) if the student has signed a waiver of the student’s
right of access under this subsection in accordance with subparagraph (D),
confidential recommendations—
( I ) respecting admission to any educational agency or institution,
( II ) respecting an application for employment, and
( III ) respecting the receipt of an honor or honorary recognition.
( D ) A student or a person applying for admission may waive
his right of access to confidential statements described in clause (iii) of
subparagraph (C), except that such waiver shall apply to recommendations only
if
( i ) the student is, upon
request, notified of the names of all persons making confidential
recommendations and
( ii ) such recommendations
are used solely for the purpose for which they were specifically
intended. Such waivers may not be required as a condition for admission
to, receipt of financial aid from, or receipt of any other services
or benefits from such agency or institution.
( 2 ) No funds shall be made available under any applicable program
to any educational agency or institution unless the parents of students who
are or have been in attendance at a school of such agency or at such institution
are provided an opportunity for a hearing by such agency or institution, in
accordance with regulations of the Secretary, to challenge the content of such
student’s education records, in order to insure that the records are
not inaccurate, misleading, or otherwise in violation of the privacy rights
of students, and to provide an opportunity for the correction or deletion of
any such inaccurate, misleading or otherwise inappropriate data contained therein
and to insert into such records a written explanation of the parents respecting
the content of such records.
( 3 ) For the purposes of this section the term “educational
agency or institution” means any public or private agency or institution
which is the recipient of funds under any applicable program.
( 4 )
( A ) For the purposes of this section, the term “education
records” means, except as may be provided otherwise in subparagraph (B),
those records, files, documents, and other materials which—
( i ) contain information directly related to a student; and
( ii ) are maintained by an educational agency or institution
or by a person acting for such agency or institution.
( B ) The term “education records” does
not include—
( i ) records of instructional, supervisory, and administrative personnel
and educational personnel ancillary thereto which are in the sole possession
of the maker thereof and which are not accessible or revealed to any other
person except a substitute;
( ii ) records maintained by a law enforcement unit
of the educational agency or institution that were created by that
law enforcement unit for the purpose of law enforcement;
( iii ) in the case of persons who are employed by an educational
agency or institution but who are not in attendance at such agency or institution,
records made and maintained in the normal course of business which relate exclusively
to such person in that person’s capacity as an employee and are not available
for use for any other purpose; or
( iv ) records on a student who is eighteen years
of age or older, or is attending an institution of postsecondary
education, which are made or maintained by a physician, psychiatrist,
psychologist, or other recognized professional or paraprofessional
acting in his professional or paraprofessional capacity, or assisting
in that capacity, and which are made, maintained, or used only in
connection with the provision of treatment to the student, and are
not available to anyone other than persons providing such treatment,
except that such records can be personally reviewed by a physician
or other appropriate professional of the student’s choice.
( 5 )
( A ) For the purposes of this section the term “directory information” relating
to a student includes the following: the student’s name, address, telephone
listing, date and place of birth, major field of study, participation in officially
recognized activities and sports, weight and height of members of athletic
teams, dates of attendance, degrees and awards received, and the most recent
previous educational agency or institution attended by the student.
( B ) Any educational agency or institution making public directory
information shall give public notice of the categories of information which
it has designated as such information with respect to each student attending
the institution or agency and shall allow a reasonable period of time after
such notice has been given for a parent to inform the institution or agency
that any or all of the information designated should not be released without
the parent’s prior consent.
( 6 ) For the purposes of this section, the term “student” includes
any person with respect to whom an educational agency or institution maintains
education records or personally identifiable information, but does not include
a person who has not been in attendance at such agency or institution.
( b ) Release of education records; parental consent requirement;
exceptions; compliance with judicial orders and subpoenas; audit and evaluation
of federally-supported education programs; recordkeeping
( 1 ) No funds shall be made available under any applicable program
to any educational agency or institution which has a policy or practice of
permitting the release of education records (or personally identifiable information
contained therein other than directory information, as defined in paragraph
(5) of subsection (a) of this section) of students without the written consent
of their parents to any individual, agency, or organization, other than to
the following—
( A ) other school officials, including teachers within the educational
institution or local educational agency, who have been determined by such agency
or institution to have legitimate educational interests, including the educational
interests of the child for whom consent would otherwise be required;
( B ) officials of other schools or school systems in which the student
seeks or intends to enroll, upon condition that the student’s parents
be notified of the transfer, receive a copy of the record if desired, and have
an opportunity for a hearing to challenge the content of the record;
( C )
( i ) authorized representatives of
( I ) the Comptroller General of the
United States,
( II ) the Secretary, or
( III ) State educational authorities,
under the conditions set forth in paragraph (3), or (ii) authorized
representatives of the Attorney General for law enforcement purposes
under the same conditions as apply to the Secretary under paragraph
(3);
( D ) in connection with a student’s application
for, or receipt of, financial aid;
( E ) State and local officials or authorities to
whom such information is specifically allowed to be reported or disclosed
pursuant to State statute adopted—
( i ) before November 19, 1974, if the allowed reporting
or disclosure concerns the juvenile justice system and such system’s
ability to effectively serve the student whose records are released,
or
( ii ) after November 19, 1974, if—
( I ) the allowed reporting or disclosure concerns the juvenile justice
system and such system’s ability to effectively serve, prior to adjudication,
the student whose records are released; and
( II ) the officials and authorities to whom such information is disclosed
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.[1]
( 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;
( G ) accrediting organizations in order to carry out their accrediting
functions;
( H ) parents of a dependent student of such parents, as defined in
section 152 of title 26;
( I ) subject to regulations of the Secretary, in connection with
an emergency, appropriate persons if the knowledge of such information is necessary
to protect the health or safety of the student or other persons; and
( J )
( i ) the entity or persons designated in a Federal grand jury subpoena,
in which case the court shall order, for good cause shown, the educational
agency or institution (and any officer, director, employee, agent, or attorney
for such agency or institution) on which the subpoena is served, to not disclose
to any person the existence or contents of the subpoena or any information
furnished to the grand jury in response to the subpoena; and
( ii ) the entity or persons designated in any other subpoena issued
for a law enforcement purpose, in which case the court or other issuing agency
may order, for good cause shown, the educational agency or institution (and
any officer, director, employee, agent, or attorney for such agency or institution)
on which the subpoena is served, to not disclose to any person the existence
or contents of the subpoena or any information furnished in response to the
subpoena. Nothing in subparagraph (E) of this paragraph shall prevent a State
from further limiting the number or type of State or local officials who will
continue to have access thereunder.
( 2 ) No funds shall be made available under any applicable program
to any educational agency or institution which has a policy or practice of
releasing, or providing access to, any personally identifiable information
in education records other than directory information, or as is permitted under
paragraph (1) of this subsection, unless—
( A ) there is written consent from the student’s parents specifying
records to be released, the reasons for such release, and to whom, and with
a copy of the records to be released to the student’s parents and the
student if desired by the parents, or
( B ) except as provided in paragraph (1)(J), such information is
furnished in compliance with judicial order, or pursuant to any lawfully issued
subpoena, upon condition that parents and the students are notified of all
such orders or subpoenas in advance of the compliance therewith by the educational
institution or agency.
( 3 ) Nothing contained in this section shall preclude authorized
representatives of
( A ) the Comptroller
General of the United States,
( B ) the Secretary,
or
( C ) State educational
authorities from having access to student or other records which
may be necessary in connection with the audit and evaluation of Federally-supported
education programs, or in connection with the enforcement of the
Federal legal requirements which relate to such programs: Provided,
That except when collection of personally identifiable information
is specifically authorized by Federal law, any data collected by
such officials shall be protected in a manner which will not permit
the personal identification of students and their parents by other
than those officials, and such personally identifiable data shall
be destroyed when no longer needed for such audit, evaluation, and
enforcement of Federal legal requirements.
( 4 )
( A ) Each educational agency or institution shall maintain a record,
kept with the education records of each student, which will indicate all individuals
(other than those specified in paragraph (1)(A) of this subsection), agencies,
or organizations which have requested or obtained access to a student’s
education records maintained by such educational agency or institution, and
which will indicate specifically the legitimate interest that each such person,
agency, or organization has in obtaining this information. Such record of access
shall be available only to parents, to the school official and his assistants
who are responsible for the custody of such records, and to persons or organizations
authorized in, and under the conditions of, clauses (A) and (C) of paragraph
(1) as a means of auditing the operation of the system.
( B ) With respect to this subsection, personal information
shall only be transferred to a third party on the condition that
such party will not permit any other party to have access to such
information without the written consent of the parents of the student.
If a third party outside the educational agency or institution permits
access to information in violation of paragraph (2)(A), or fails
to destroy information in violation of paragraph (1)(F), the educational
agency or institution shall be prohibited from permitting access
to information from education records to that third party for a period
of not less than five years.
( 5 ) Nothing in this section shall
be construed to prohibit State and local educational officials from
having access to student or other records which may be necessary
in connection with the audit and evaluation of any federally or State
supported education program or in connection with the enforcement
of the Federal legal requirements which relate to any such program,
subject to the conditions specified in the proviso in paragraph (3).
( 6 )
( A ) Nothing in this section shall be construed to prohibit an institution
of postsecondary education from disclosing, to an alleged victim of any crime
of violence (as that term is defined in section 16 of title 18), or a nonforcible
sex offense, the final results of any disciplinary proceeding conducted by
such institution against the alleged perpetrator of such crime or offense with
respect to such crime or offense.
( B ) Nothing in this section shall be construed
to prohibit an institution of postsecondary education from disclosing
the final results of any disciplinary proceeding conducted by such
institution against a student who is an alleged perpetrator of any
crime of violence (as that term is defined in section 16 of title
18), or a nonforcible sex offense, if the institution determines
as a result of that disciplinary proceeding that the student committed
a violation of the institution’s rules or policies with respect
to such crime or offense.
( C ) For the purpose of this paragraph, the final
results of any disciplinary proceeding—
( i ) shall include only the name of
the student, the violation committed, and any sanction imposed by the institution
on that student; and
( ii ) may include the name of any other student,
such as a victim or witness, only with the written consent of that
other student.
( 7 )
( A ) Nothing in this section may
be construed to prohibit an educational institution from disclosing
information provided to the institution under section 14071 of title
42 concerning registered sex offenders who are required to register
under such section.
( B ) The Secretary shall take appropriate
steps to notify educational institutions that disclosure of information
described in subparagraph (A) is permitted.
( c ) Surveys or data-gathering activities; regulations
Not later than 240 days after October 20, 1994, the Secretary shall
adopt appropriate regulations or procedures, or identify existing
regulations or procedures, which protect the rights of privacy of
students and their families in connection with any surveys or data-gathering
activities conducted, assisted, or authorized by the Secretary or
an administrative head of an education agency. Regulations established
under this subsection shall include provisions controlling the use,
dissemination, and protection of such data. No survey or data-gathering
activities shall be conducted by the Secretary, or an administrative
head of an education agency under an applicable program, unless such
activities are authorized by law.
( d ) Students’ rather than parents’ permission
or consent For the purposes of this section, whenever a student has
attained eighteen years of age, or is attending an institution of
postsecondary education, the permission or consent required of and
the rights accorded to the parents of the student shall thereafter
only be required of and accorded to the student.
( e ) Informing parents or students of rights under
this section No funds shall be made available under any applicable
program to any educational agency or institution unless such agency
or institution effectively informs the parents of students, or the
students, if they are eighteen years of age or older, or are attending
an institution of postsecondary education, of the rights accorded
them by this section.
( f ) Enforcement; termination of assistance The
Secretary shall take appropriate actions to enforce this section
and to deal with violations of this section, in accordance with this
chapter, except that action to terminate assistance may be taken
only if the Secretary finds there has been a failure to comply with
this section, and he has determined that compliance cannot be secured
by voluntary means.
( g ) Office and review board; creation; functions
The Secretary shall establish or designate an office and review board
within the Department for the purpose of investigating, processing,
reviewing, and adjudicating violations of this section and complaints
which may be filed concerning alleged violations of this section.
Except for the conduct of hearings, none of the functions of the
Secretary under this section shall be carried out in any of the regional
offices of such Department.
( h ) Disciplinary records; disclosure Nothing in
this section shall prohibit an educational agency or institution
from—
( 1 ) including appropriate information in the education record of
any student concerning disciplinary action taken against such student for conduct
that posed a significant risk to the safety or well-being of that student,
other students, or other members of the school community; or
( 2 ) disclosing such information to teachers and
school officials, including teachers and school officials in other
schools, who have legitimate educational interests in the behavior
of the student.
( i ) Drug and alcohol violation disclosures
( 1 ) In general Nothing in this Act or the Higher
Education Act of 1965 [20 U.S.C. 1001 et seq.] shall be construed
to prohibit an institution of higher education from disclosing, to
a parent or legal guardian of a student, information regarding any
violation of any Federal, State, or local law, or of any rule or
policy of the institution, governing the use or possession of alcohol
or a controlled substance, regardless of whether that information
is contained in the student’s education records, if—
( A ) the student is under the age of 21; and
( B ) the institution determines that the student
has committed a disciplinary violation with respect to such use or
possession.
( 2 ) State law regarding disclosure Nothing in
paragraph (1) shall be construed to supersede any provision of State
law that prohibits an institution of higher education from making
the disclosure described in subsection (a) of this section.
( j ) Investigation and prosecution of terrorism
( 1 ) In general Notwithstanding subsections (a)
through (i) of this section or any provision of State law, the Attorney
General (or any Federal officer or employee, in a position not lower
than an Assistant Attorney General, designated by the Attorney General)
may submit a written application to a court of competent jurisdiction
for an ex parte order requiring an educational agency or institution
to permit the Attorney General (or his designee) to—
( A ) collect education records in the possession
of the educational agency or institution that are relevant to an
authorized investigation or prosecution of an offense listed in section
2332b (g)(5)(B) of title 18, or an act of domestic or international
terrorism as defined in section 2331 of that title; and
( B ) for official purposes related to the investigation or prosecution
of an offense described in paragraph (1)(A), retain, disseminate, and use (including
as evidence at trial or in other administrative or judicial proceedings) such
records, consistent with such guidelines as the Attorney General, after consultation
with the Secretary, shall issue to protect confidentiality.
( 2 ) Application and approval
( A ) In general.— An application under paragraph (1) shall
certify that there are specific and articulable facts giving reason to believe
that the education records are likely to contain information described in paragraph
(1)(A).
( B ) The court shall issue an order described in
paragraph (1) if the court finds that the application for the order
includes the certification described in subparagraph (A).
( 3 ) Protection of educational agency or institution
An educational agency or institution that, in good faith, produces
education records in accordance with an order issued under this subsection
shall not be liable to any person for that production.
( 4 ) Record-keeping Subsection (b)(4) of this section
does not apply to education records subject to a court order under
this subsection.
[1] So in original. The period probably should be a semicolon. |
