# data[].attributes.body
Promote to school staff the ethical standards that school counselors adhere to via talks during professional development, regularly giving information.

Via handbooks, information sessions, and social media explain the legal limitations of confidentiality both annually as mandated and regularly.

Advocate for the use of secure sharing of data electronically, ensuring that yourself and staff adhere to federal, state, and local laws and policy on data sharing. If necessary, sensitive information should be shared via phone call or in-person rather than email.

Unless legally obligated in order to prevent harm to a student or others, information is to keep confidential. "Inform parents/guardians and/or appropriate authorities when a student poses a serious and foreseeable risk of harm to self or others. When feasible, this is to be done after careful deliberation and consultation with other appropriate professionals. School counselors inform students of the school counselor’s legal and ethical obligations to report the concern to the appropriate authorities unless it is appropriate to withhold this information to protect the student (e.g. student might run away if he/she knows parents are being called). The consequence of the risk of not giving parents/ guardians a chance to intervene on behalf of their child is too great." (ASCA National Model, n.d. A.9. Serious and Foreseeable Harm to Self and Others. (a).

Refrain from sharing information that can be considered confidential electronically as much as possible, whether that means non-directory information or possible breaches in information given confidence. "Take appropriate and reasonable measures for maintaining confidentiality of student information and educational records stored or transmitted through the use of computers, social media, facsimile machines, telephones, voicemail, answering machines and other electronic technology." (ASCA National Model, n.d. A.14. Technical and Digital Citizenship. (b).

Avoid straying from approved software and using software that may be vulnerable to breaches in information, using current trends to best reach students and stakeholders is important however, ensuring information is protected is crucial.

Appropriately collaborate with stakeholders in referring proper resources for students while avoiding any unnecessary breaches in confidentiality.

# data[].attributes.headline
United States v. Miami University, 91 F. Supp. 2d 1132

# data[].attributes.subject
United States v. Miami University, 91 F. Supp. 2d 1132

# data[].attributes.body
After the Ohio Supreme Court ruled that these disciplinary records were not education records under FERPA and ordered Miami University to release them to the student newspaper.

Ultimately the federal court sided with the Department of Education, and concluded that the disciplinary records of students are considered "education records" as defined by FERPA, making them unauthorized to be released without consent of the student.

(United States V. Miami University, 91 F. Supp. 2d 1132 (S.D. Ohio 2000), n.d.)

# data[].attributes.attachment_link.readable_text
U.S. District Court for the Southern District of Ohio - 91 F. Supp. 2d 1132 (S.D. Ohio 2000)
March 20, 2000

UNITED STATES of America, Plaintiff,
v.
THE MIAMI UNIVERSITY, and The Ohio State University, Defendants,
and
The Chronicle of Higher Education, Intervenor-Defendant.

No. C-2-98-0097.

United States District Court, S.D. Ohio, Eastern Division.

March 20, 2000.

Deborah F. Sanders, United States Attorney's Office, Columbus, OH, Frank W. Hunger, Assistant Attorney General Civil Division, U.S. Department of Justice, Washington, DC, for Plaintiff.

Gerald Linden Draper, Roetzel & Andress, Columbus, OH, Adam Edward Scurti, King Hargrave Scurti & Jack, Steubenville, OH, Edward N. Stoner, II, Reed, Smith, Shaw & McClay, Pittsburgh, PA, for Kenneth A. Zirm, Ohio Attorney General, Assistant Attorney General, Marc David Mezibov, Sirkin Pinales Mezibov & Schwartz, Ted L. Wills, Cincinnati, OH, for Defendants.

GEORGE C. SMITH, District Judge.

Plaintiff, United States of America ("United States"), commenced this action on January 22, 1998, suing on its own behalf and on behalf of the United States Department of Education ("Department"). The Complaint alleges that Defendants, The Miami University and The Ohio State University ("Defendants"), violated the Family Educational Rights and Privacy Act ("FERPA"), 20 U.S.C. § 1232g, by releasing student disciplinary records containing personally identifiable information without the prior consent of the students or their parents. Plaintiff also claims that Defendants have a policy or practice of releasing such records and that Defendants intend to continue releasing such records in the future. Plaintiff sought relief in the form of a declaratory judgment, and preliminary and permanent injunctions.

On February 12, 1998, the Court issued a preliminary injunction prohibiting Defendants from releasing student disciplinary records that contain "personally identifiable information," except as otherwise expressly permitted under FERPA. Subsequently, the Court permitted The Chronicle of Higher Education ("Intervenor" or "The Chronicle"), a national weekly newspaper covering issues regarding higher education, to intervene as a defendant in this action.

Since intervening, The Chronicle has filed a motion to dismiss for lack of subject matter jurisdiction, and a motion for an order of procedure establishing a period for discovery and permitting an evidentiary hearing on the merits. In response, Plaintiff has moved for summary judgment and a permanent injunction.

For the reasons that follow, The Chronicle's Motion to Dismiss and its Motion for an Order of Procedure are denied. Plaintiff's Motion for Summary Judgment is granted.

The circumstances giving rise to the instant case find their genesis in State ex. rel. The Miami Student v. Miami University, 79 Ohio St.3d 168, 680 N.E.2d 956 (1997), an Ohio Supreme Court decision addressing, inter alia, the scope of the term "education records" under FERPA. In Miami University, the university student newspaper, The Miami Student, requested records of Miami University's student disciplinary proceedings. Miami University initially refused to release the records, and subsequently, the newspaper made a formal request under the Ohio Public Records Act, Ohio Rev.Code § 149.43. See id. at 957.

In April 1996, Miami University released redacted copies of some of its disciplinary records. Relying on FERPA, it deleted the name, sex and age of the accused students, as well as the date, time and location of the incidents giving rise to the disciplinary charges. See id. The student newspaper was not satisfied with the redacted copies. It believed that the Ohio Public Records Act required Miami University to provide it with complete copies of the disciplinary records, with only names and social security numbers or student identification numbers redacted. See id. Consequently, the newspaper filed an original mandamus action in the Ohio Supreme Court, seeking a writ compelling the university to disclose the disputed records pursuant to the Ohio Public Records Act. See id.

The Ohio Supreme Court issued its decision on July 9, 1997, granting a writ of mandamus compelling the university to disclose its student disciplinary records. See id. at 960.[1] In reaching this result, the court held that FERPA did not apply to student disciplinary records. See id. at 959. Specifically, the court concluded that student disciplinary records are not "education records" as defined in FERPA because disciplinary records "do not contain educationally related information, such as grades or other academic data, and are unrelated to academic performance, financial aid, or scholastic performance." Id. at 958-59.[2]

Soon after the Ohio Supreme Court issued its decision, Defendants received requests from The Chronicle to release student disciplinary records for the years 1995 and 1996, with no redactions. (Doc. 7 and Ex. A attached thereto; May 19, 1998, Appendix of Intervenor, Doc. No. 6). On July 21, 1997, after receiving The Chronicle's request, Miami University notified the Department of Education that it "may be unable to comply with the Family Educational Rights and Privacy Act due to a potential conflict with state law[,]" namely the Ohio Public Records Act. The Department responded to Miami University by letter dated August 7, 1997. The letter stated that the Department believed that student disciplinary records are "education records" as defined by FERPA, and thus, it would be a violation of federal law for Miami University to release student disciplinary records or any personally identifiable information contained therein without the student's prior consent. (Doc. 3 and Ex. A attached thereto).

On September 5, 1997, general counsel for Miami University informed the Department that it would appeal the Ohio Supreme Court's decision in Miami University to the United States Supreme Court. (Compl. ¶ 10; Doc. 3 and Ex. A attached thereto). The United States Supreme Court, however, denied the petition for certiorari on December 8, 1997. See 522 U.S. 1022, 118 S. Ct. 616, 139 L. Ed. 2d 502 (1997). This prompted Miami University to accommodate The Chronicle's previous request for disciplinary records by releasing such records for the months of November 1995 and November 1996, redacting only student social security numbers. (Doc. 3 and Ex. A attached thereto). Moreover, Miami University informed the Department that it intended to provide The Chronicle with copies of the remainder of its student disciplinary records from 1995 and 1996. (Doc. 3 and Ex. A attached thereto).

On January 7, 1998, the Department learned from counsel for The Ohio State University that The Chronicle also had requested student disciplinary records from OSU, and that on December 22, 1997, OSU had released its student disciplinary records from November 1995 and November 1996. Furthermore, on January 16, 1998, OSU informed the Department that The Chronicle had requested the remainder of its disciplinary records from 1995 and 1996, and that OSU intended to comply with that request. (Id.).

Consequently, the Department filed the instant action and a motion for a preliminary injunction on January 23, 1998. At a conference regarding the motion for a preliminary injunction, Plaintiff and Defendants agreed that the facts in this case are not in dispute, and that an evidentiary hearing is not required. Furthermore, during a telephonic status conference with the parties, Defendants' counsel indicated that unless enjoined, Defendants intended to continue to release their respective disciplinary records. On, February 12, 1998, the Court issued a preliminary injunction prohibiting the release of student disciplinary records and personally identifiable information contained therein, except as expressly permitted under FERPA. That injunction is still in force.

As an initial matter, The Chronicle moves this Court to dismiss the instant action pursuant to Rule 12(b) (1) of the Federal Rules of Civil Procedure for lack of subject matter jurisdiction. More specifically, it argues that the United States lacks standing to bring this action.

For purposes of ruling on a motion to dismiss for lack of standing pursuant to Rule 12(b) (1), the court must view the complaint in the light most favorable to the plaintiff and must accept as true all material allegations in the complaint. See Warth v. Seldin, 422 U.S. 490, 501, 95 S. Ct. 2197, 45 L. Ed. 2d 343 (1975). "Plaintiffs, however, bear the burden of persuading the court that it has subject matter jurisdiction." American Fed. of Govt. Employees v. Clinton, 180 F.3d 727, 729 (6th Cir. 1999).

A party seeking relief in federal court must have standing to sue in order for the federal court to have jurisdiction over the matter. See Kardules v. Columbus, 95 F.3d 1335, 1346 (6th Cir.1996). The concept of standing derives from the mandate in Article III of the United States Constitution that federal courts adjudicate only "cases" or "controversies". See U.S. Const. Art. III, § 2, cl. 1; Allen v. Wright, 468 U.S. 737, 750-51, 104 S. Ct. 3315, 82 L. Ed. 2d 556 (1984). Standing involves both constitutional and prudential dimensions. See Warth v. Seldin, 422 U.S. at 498, 95 S. Ct. 2197.

*1137 From a constitutional standpoint, a plaintiff must satisfy, at a minimum, three requirements in order to establish standing:

First, the Plaintiff must have suffered an "injury in fact"an invasion of a legally protected interest which is (a) concrete and particularized, and (b) "actual or imminent, not `conjectural' or `hypothetical[.]'" Second, there must be a causal connection between the injury and the conduct complained of the injury has to be "fairly ... trace[able] to the challenged action of the defendant, and not ... th[e] result [of] the independent action of some third party not before the court." Third, it must be "likely," as opposed to merely "speculative," that the injury will be "redressed by a favorable decision."

Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61, 112 S. Ct. 2130, 119 L. Ed. 2d 351 (1992) (citations and footnotes omitted) (brackets in original).

The issue before this Court is whether the Department of Education has standing, either statutorily or otherwise, to bring this action against Defendants, The Ohio State University and Miami University.[3] For the reasons that follow, the Court holds that the Department does have standing to bring this action for injunctive and declaratory relief.

1. Plain Language and Purpose of the Statute

It is well settled that when an agency is acting pursuant to a statute, that agency "has no power to act ... unless and until Congress confers power upon it." Louisiana Pub. Serv. Comm'n v. FCC, 476 U.S. 355, 374, 106 S. Ct. 1890, 90 L. Ed. 2d 369 (1986); see also Houston Oil & Refining, Inc. v. United States Fed. Energy Regulatory Comm'n, 95 F.3d 1126, 1135-36 (Fed.Cir.1996); Friends of Crystal River v. United States Environ. Protection Agency, 35 F.3d 1073, 1079-80 (6th Cir. 1994); Walker v. Luther, 830 F.2d 1208, 1211 (2d Cir.1987) ("As a matter of statutory construction, statutes granting power to administrative agencies are strictly construed as conferring only those powers granted expressly or by necessary implication.").

The Chronicle, together with Amici in Opposition to Plaintiff,[4] argue that the Department and the United States have no standing to bring this suit for declaratory and injunctive relief because Congress has not conferred such authority upon them, and because they are bound by the administrative remedies enumerated in the act and its corresponding regulations. The Court, therefore, must interpret the language of FERPA and related provisions to determine whether the Department does in fact have express authority to bring this action.

"It is axiomatic that `[t]he starting point in every case involving construction of a statute is the language itself.'" Landreth Timber Co. v. Landreth, 471 U.S. 681, 685, 105 S. Ct. 2297, 85 L. Ed. 2d 692 (1985) (quoting Blue Chip Stamps v. Manor Drug Stores, 421 U.S. 723, 756, 95 S. Ct. 1917, 44 L. Ed. 2d 539 (1975) (Powell, J., concurring)). A statute's plain language must ordinarily be regarded as conclusive, unless there exists a clearly expressed legislative intention to the contrary. See Parker-Hannifin v. Commissioner of Internal Revenue, 139 F.3d 1090, 1095 (6th Cir.1998); Walker, 830 F.2d at 1210.

Applying this principle to the instant case, the Court finds that the plain meaning of the statutory text at issue here confers authority upon the Department to file a civil action to enforce the provisions of FERPA. The express language of FERPA states:

[T]he Secretary [of Education] shall take appropriate actions to enforce this section and to deal with violations of this section, in accordance with this chapter, except that actions 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.

20 U.S.C. § 1232g(f). The statutory scheme provided for FERPA's enforcement is further set forth at 20 U.S.C. § 1234c, as follows:

§ 1234c. Remedies for existing violations

(a) Whenever the Secretary has reason to believe that any recipient of funds under any applicable program is failing to comply substantially with any requirement of law applicable to such funds the Secretary may

(1) withhold further payments under that program, as authorized by section 1234d of this title;

(2) issue a complaint to compel compliance through a cease and desist order of the Office, as authorized by section 1234e of this title;

(3) enter into a compliance agreement with a recipient to bring it into compliance, as authorized by section 1234f of this title; or

(4) take any other action authorized by law with respect to the recipient.

(b) Any action, or failure to take action, by the Secretary under this section shall not preclude the Secretary from seeking a recovery of funds under section 1234a of this title.

20 U.S.C. § 1234c (emphasis added).

By including the phrase, "take any other action authorized by law with respect to the recipient[,]" Congress intended to provide the Secretary of Education with broad powers to effectuate and enforce the provisions of FERPA, including the power to file civil actions in federal court. A civil action seeking injunctive relief is a common method for enforcing rights and obligations arising under federal law. Thus, it follows that this lawsuit is an "action authorized by law" as stated in § 1234c.

Furthermore, reference to other federal case law supports the Court's finding that the language in § 1234c(a) (4) authorizes the Secretary of Education to file federal actions. Several federal courts have construed similar language in other federal statutes as authorizing agencies to file enforcement actions in federal court. See United States v. Baylor Univ. Med. Ctr., 736 F.2d 1039, 1050 (5th Cir.1984) (interpreting enforcement provisions of the Rehabilitation Act, 29 U.S.C. § 794), cert. denied, 469 U.S. 1189, 105 S. Ct. 958, 83 L. Ed. 2d 964 (1985); National Black Police Assoc. v. Velde, 712 F.2d 569, 575-76 (D.C.Cir.1983) (interpreting enforcement provisions of Title VI of the Civil Rights Act of 1964, 42 U.S.C. § 2000d-1), cert. denied, 466 U.S. 963, 104 S. Ct. 2180, 80 L. Ed. 2d 562 (1984); Brown v. Califano, 627 F.2d 1221, 1225, 1227-29, 1232-33 n. 67 (D.C.Cir.1980) (interpreting enforcement provisions of Title VI); United States v. Marion County Sch. Dist., 625 F.2d 607, 612-13 (5th Cir.1980) (interpreting the enforcement provisions of Title VI), cert. denied, 451 U.S. 910, 101 S. Ct. 1980, 68 L. Ed. 2d 298 (1981); United States v. City of Denver, 927 F. Supp. 1396, 1400 (D.Col.1996) (interpreting enforcement provisions of Title VI as applied to Title II of the Americans with Disabilities Act, 42 U.S.C. § 12131, et seq.)

For example, Title VI of the Civil Rights Act of 1964, which is codified at 20 U.S.C. § 2000d-1, prohibits discrimination on the grounds of race, color, or national origin under any program receiving federal financial assistance. Moreover, 42 U.S.C. § 2000d-1 provides that each department or agency that is empowered to effectuate the provisions of Title VI may ensure compliance, "(1) by the termination of or refusal to grant or to continue assistance under such program or activity to any recipient as to whom there has been an express finding on the record ... or (2) by any other means authorized by law." 42 U.S.C. § 2000d-1 (emphasis added).

In National Black Police Assoc. v. Velde, 712 F.2d 569 (D.C.Cir.1983), cert. denied, 466 U.S. 963, 104 S. Ct. 2180, 80 L. Ed. 2d 562 (1984), several African-American and women police officers filed a lawsuit against various federal agencies and officials. The police officers alleged that the agencies had violated the officers' constitutional and statutory rights, including Title VI, by failing to terminate federal funding to local law enforcement agencies that used funds to discriminate on the basis of race and sex. Id. at 572. The court had to determine whether the federal agencies and officials were protected from liability by qualified immunity. The standard for qualified immunity required the court to determine whether the federal officials' "failure to terminate funding to local law enforcement agencies violated statutory or constitutional duties clearly established at the time the failure occurred." Id. at 574.

The court, in holding that Title VI did not impose a clear statutory duty regarding termination of funding, made the following statements:

Compliance with any requirement adopted pursuant to [Title VI] may be effected (1) by the termination of or refusal to grant or to continue assistance under such program or activity to any recipient as to whom there has been an express finding on the record, after opportunity for hearing, of a failure to comply with such requirements, ... or (2) by any other means authorized by law. Appellants contend that this provision imposed on appellees a clear duty to terminate funds to agencies that unlawfully discriminate.

On its face, however, the statutory language is not mandatory. Section 2000d-1 allows the funding agency to effect compliance through funding termination or "any other means authorized by law." Although fund termination was envisioned as the primary means of enforcement under Title VI, and although it has proven very effective as a deterrent to discrimination, Title VI clearly tolerates other enforcement schemes. Prominent among these other means of enforcement is referral of cases to the Attorney General, who may bring an action against the recipient. The choice of enforcement methods was intended to allow funding agencies flexibility in responding to instances of discrimination. Faced with this statutory discretion, we cannot say that appellees' failure to terminate funding violated a clearly established statutory duty under Title VI.

Id. at 574-76 (citations omitted) (emphasis added); see also United States v. Baylor Univ. Med. Ctr., 736 F.2d 1039, 1050 (5th Cir.1984) (stating that in enforcing Section 504 of the Rehabilitation Act, a federal agency does not have to resort solely to administrative remedies because the statute expressly states "any agency may resort to `any other means authorized by law' including the federal courts"), cert. denied, 469 U.S. 1189, 105 S. Ct. 958, 83 L. Ed. 2d 964 (1985); Brown v. Califano, 627 F.2d 1221, 1225, 1227-29, 1232-33 n. 67 (D.C.Cir.1980) (noting several times that the language "by any means authorized by law" gave the Department of Health, Education and Welfare the authority to refer Title VI violations to the Department of Justice with a recommendation for appropriate legal action); United States v. Marion County Sch. Dist., 625 F.2d 607, 612-13 (5th Cir.1980) (stating that the phrase "by any other means authorized by law" and the legislative history addressing that phrase indicate Congress' intent to authorize government suits to enforce contractual assurances to comply with Title VI), cert. denied, 451 U.S. 910, 101 S. Ct. 1980, 68 L. Ed. 2d 298 (1981); United States v. City of Denver, 927 F. Supp. 1396, 1400 (D.Col.1996) ("Courts have interpreted the words `by any other means authorized by law' to mean that a funding agency, after finding a violation and determining that voluntary compliance is not forthcoming, could refer the matter to the Department of Justice to enforce the statute's nondiscrimination requirement in court.").[5]

The consistency with which other courts have interpreted the phrase "any other means authorized by law," or similar phrases, as authorizing agencies to file enforcement actions in federal court suggests that Congress must have intended such language in § 1234c(a) (4) to have the same meaning. Accordingly, the above-cited cases support the conclusion that § 1234c(a) (4) authorizes the United States and the Department to file suit in federal court to enforce FERPA.

An inquiry into the purpose of FERPA also supports the Court's conclusion that the Department and the United States have standing to bring this action. The purpose of FERPA is: (1) to create a right of access to student records for parents and students; and (2) to protect the privacy of those records by preventing unauthorized access by third parties. See 120 Cong.Rec. 39,858, 39,862-39,863 (December 13, 1974); 121 Cong.Rec. 7974 (May 13, 1975); see also Belanger v. Nashua New Hampshire School Dist., 856 F. Supp. 40, 47 (D.N.H.1994). Without the ability to file lawsuits in federal court, the Department is left without a meaningful remedy by which to accomplish FERPA's purpose; the primary remaining enforcement mechanism would be withdrawal of funding to any educational institution that violates FERPA. Such a harsh remedy would serve as a significant financial blow to universities and other institutions, and potentially could cause a decrease in the level of education. In the long-run, the students attending these institutions and their parents the parties whom FERPA was intended to protect would be the ones most penalized by such action. Therefore, except in the most egregious cases, termination of federal funding would actually stymie the purposes of FERPA, rather than advance them. See Maynard v. Greater Hoyt Sch. Dist., 876 F. Supp. 1104, 1107 (D.S.D.1995) (stating that termination of funding as a sole remedy "would serve to exacerbate the community's financial burden in providing the `free, appropriate, public education' required by other federal statutes."); cf. Guardians Assoc. v. Civil Serv. Comm'n of New York, 463 U.S. 582, 601, 103 S. Ct. 3221, 77 L. Ed. 2d 866 (1983) (stating that under Title VI of the Civil Rights Act, which has similar enforcement language to FERPA, Congress regarded termination of funds as "`a last resort, to be used only if all else fails,' because `cutoffs of Federal funds would defeat important objectives of federal legislation, without commensurate gains in eliminating racial discrimination or segregation.'") (quoting 110 Cong.Rec. 6544, 6546); Cannon v. University of Chicago, 441 U.S. 677, 705 n. 38, 99 S. Ct. 1946, 60 L. Ed. 2d 560 (1979) (In a case involving the issue of whether Title IX of the Education Amendments of 1972 authorized a private right of action or whether termination of funding was the sole means of enforcement, the Court observed that "Congress itself has noted the severity of the fund-cutoff remedy and has described it as a last resort, all else including `lawsuits' failing") (citing 110 Cong.Rec. S7067 (1965)).

In sum, based on the plain language of § 1234c(a) (4) and the purposes for which FERPA was enacted, the Court finds that the Department and the United States are statutorily authorized to bring civil actions to enforce FERPA.[6]

2. Inherent Right to File Suit

Assuming arguendo that FERPA and the accompanying enforcement provisions in § 1234c do not expressly authorize the Department and the United States to file suits to enforce FERPA's requirements, the Court still finds that they have the authority and standing to file this action. This finding is based on the United States' inherent right, regardless of express statutory authority, to sue a recipient of federal funding to enforce the terms and conditions of a federal grant. See Henke v. United States Dept. of Commerce, 83 F.3d 1445, 1450 (D.C.Cir.1996); State of New York v. Federal Aviation Admin., 712 F.2d 806, 809 (2d Cir.1983); United States v. Marion County Sch. Dist., 625 F.2d 607, 609 (5th Cir.1980), cert. denied, 451 U.S. 910, 101 S. Ct. 1980, 68 L. Ed. 2d 298 (1981); United States v. Baylor Univ. Med. Ctr., 564 F. Supp. 1495, 1498 (N.D.Tex.1983), aff'd in part, modified in part, vacated in part, 736 F.2d 1039 (5th Cir.1984), cert. denied, 469 U.S. 1189, 105 S. Ct. 958, 83 L. Ed. 2d 964 (1985); United States v. Tatum Independent Sch. Dist., 306 F. Supp. 285, 288 (E.D.Tex.1969); United States v. Frazer, 297 F. Supp. 319, 322-23 (M.D.Ala.1968).

Federal grants authorized by Congress create binding contracts between the United States and the recipient, and the United States has the authority to fix the terms and conditions upon which federal funds will be disbursed. See Gebser v. Lago Vista Indep. Sch. Dist., 524 U.S. 274, 286, 118 S. Ct. 1989, 1994, 141 L. Ed. 2d 277 (1998); Davis v. Monroe County Bd. of Educ., 526 U.S. 629, 640, 119 S. Ct. 1661, 1670, 143 L. Ed. 2d 839 (1999) ("When Congress acts pursuant to its spending power, it generates legislation `much in the nature of a contract: in return for federal funds, the States agree to comply with federally imposed conditions.'") (citing Pennhurst State Sch. and Hosp. v. Halderman, 451 U.S. 1, 17, 101 S. Ct. 1531, 67 L. Ed. 2d 694 (1981)); United States v. Northern Pacific Ry. Co., 256 U.S. 51, 63, 41 S. Ct. 439, 65 L. Ed. 825 (1921); McGee v. Mathis, 71 U.S. 143, 153, 4 Wall. 143, 18 L. Ed. 314 (1866); New York v. Federal Aviation Admin., 712 F.2d 806, 809 (2d Cir.1983); United States v. Marion County Sch. Dist., 625 F.2d 607, 609 (5th Cir.1980), cert. denied, 451 U.S. 910, 101 S. Ct. 1980, 68 L. Ed. 2d 298 (1981); United States v. Frazer, 297 F. Supp. 319, 322 (M.D.Ala. 1968). United States v. County Sch. Bd., 221 F. Supp. 93, 99-100 (E.D.Va.1963) (stating that it has been long held that federal grants create binding contracts between the United States and the recipient).[7] Accordingly, acceptance of a federal grant to which conditions are attached "creates an obligation to perform the conditions on the part of the recipient." Frazer, 297 F. Supp. at 322 (citing United States v. Northern Pacific Ry. Co., 256 U.S. 51, 41 S. Ct. 439, 65 L. Ed. 825 (1921)); see also Marion County, 625 F.2d at 609-10.

Furthermore, when the United States places conditions on a grant of federal funds, it has an inherent right, separate from any statutory enforcement rights, "to sue for enforcement of the recipient's obligation in court." Marion County, 625 F.2d at 609; see also Guardians Assoc. v. Civil Serv. Comm'n of New York, 463 U.S. 582, 630-31, 103 S. Ct. 3221, 77 L. Ed. 2d 866 (1983) (Marshall, J., dissenting) ("Indeed, in extending grants the United States has always retained an inherent right to sue for enforcement of the recipient's obligation."); Bell v. New Jersey & Pennsylvania, 461 U.S. 773, 794, 103 S. Ct. 2187, 76 L. Ed. 2d 312 (1983) (White, J., concurring) (stating that contractual agreements between the United States and the States containing conditions of fund disbursement are, absent contrary congressional intent, "surely enforceable in a court of law"); Henke v. United States Dept. of Commerce, 83 F.3d 1445, 1450 (D.C.Cir.1996); State of New York v. Federal Aviation Admin., 712 F.2d at 809; United States v. Baylor Univ. Med. Ctr., 564 F. Supp. 1495, 1498 (N.D.Tex.1983), aff'd in part, modified in part, vacated in part, 736 F.2d 1039 (5th Cir.1984), cert. denied, 469 U.S. 1189, 105 S. Ct. 958, 83 L. Ed. 2d 964 (1985); United States v. Tatum Indep. Sch. Dist., 306 F. Supp. 285, 288 (E.D.Tex.1969); United States v. Frazer, 297 F. Supp. at 322-23. When filing such an action, the United States may seek whatever remedy is necessary to enforce the conditions of the grant. See Marion County, 625 F.2d at 617; Guardians Assoc. v. Civil Serv. Comm'n, 463 U.S. at 630-31, 103 S. Ct. 3221 (Marshall, J., dissenting); Rex Trailer Co. v. United States, 350 U.S. 148, 151, 76 S. Ct. 219, 100 L. Ed. 149 (1956).[8]

In this case, both Ohio State and Miami entered into "Program Participation Agreements" with the Department of Education. (Doc. 29 and Ex. 1 and 2 attached thereto).[9] These agreements provide for the disbursement of federal funds to OSU and Miami pursuant to various federal statutory programs. (Id.) Additionally, each agreement states that "participation is subject to the terms and conditions set forth in this agreement." (Id.) One such condition, set forth in § 3.c. of the agreement, provides that "[t]he Institution agrees to comply with ... [t]he Family Rights and Privacy Act of 1974 and the implementing regulations, 34 CFR Part 99[.]" (Id.)

One of the requirements of FERPA is that educational institutions not adopt a policy or practice of permitting the release of education records or personally identifiable information contained therein, except as permitted under the statute. See 20 U.S.C. § 1232g(b) (2). Accordingly, if the Department and the United States believe that OSU and Miami are violating the terms of their agreements or are about to violate such terms, they have the right, under federal common law, to bring a civil action in federal court to resolve the dispute. Furthermore, this authority stands apart from the statute and its administrative regulations.[10]

3. FERPA Imposes Enforceable Obligations

As an additional argument against standing, The Chronicle argues that FERPA does not prohibit schools and institutions from releasing "education records," but rather, it merely authorizes the Department of Education to withdraw funding from any school or institution that chooses to release such records.[11] Therefore, it argues, the United States does not have the authority to seek declaratory and injunctive relief, such as it seeks in this case. The Chronicle cites several federal and state cases as support for its position. See, e.g., Tombrello v. U.S.X. Corp., 763 F. Supp. 541, 545 (N.D.Ala.1991); Girardier v. Webster College, 563 F.2d 1267, 1267-77 (8th Cir.1977); Bauer v. Kincaid, 759 F. Supp. 575, 590 (W.D.Mo.1991); Student Press Law Ctr. v. Alexander, 778 F. Supp. 1227, 1232 n. 13 (D.D.C.1991) Smith v. Duquesne Univ., 612 F. Supp. 72, 80 (W.D.Pa.1985); Price v. Young, 580 F. Supp. 1, 2 (E.D.Ark.1983); Student Bar Assoc. v. Byrd, 293 N.C. 594, 239 S.E.2d 415 (1977); Princeton City Sch. Dist. Bd. of Educ. v. Ohio State Bd. of Educ., 96 Ohio App.3d 558, 566, 645 N.E.2d 773 (Ohio App.1994).

The Court, however, disagrees. Two factors support the conclusion that FERPA imposes a direct obligation on universities not to disclose "education records." First, many of FERPA's enforcement provisions would be unnecessary if the statute did not prohibit certain behavior. As discussed above, FERPA and § 1234c authorize the Secretary of Education, inter alia, to issue cease and desist orders and to take any other action authorized by law. See 20 U.S.C. §§ 1232g(f), 1234c; 34 C.F.R. § 99.67. The fact that Congress provided these types of remedies under FERPA illustrates its intention to place restrictions and obligations on schools and institutions covered by the statute. If FERPA did not prohibit the release of "education records" in certain circumstances, the statutory language authorizing the Secretary to issue cease and desist orders and to take any other action authorized by law would be superfluous, because there would not be any behavior from which schools would be required to cease and desist. Congress could not have intended the statute to be read in this manner. It is a well-settled principle of statutory construction that a court should avoid interpreting a statute so as to make portions of it superfluous. See e.g., United States v. Page, 131 F.3d 1173, 1180 (6th Cir.1997) ("It is well settled law that statutory constructions that render portions of a statute superfluous are to be avoided."), cert. denied, 525 U.S. 828, 119 S. Ct. 77, 142 L. Ed. 2d 61 (1998); Schering-Plough Healthcare Prods., Inc., v. NBD Bank, 98 F.3d 904, 909 (6th Cir.1996) (same).

Second, several federal courts, in the context of § 1983 actions, have held that FERPA creates federal rights and imposes mandatory obligations and restrictions on educational institutions. See Achman v. Chisago Lakes Indep. Sch. Dist., 45 F. Supp. 2d 664, 674 (D.Minn.1999) (holding that FERPA "creates a federal right that is enforceable through section 1983 actions"); Cullens v. Bemis, 979 F.2d 850, 1992 WL 337688, at *1 (6th Cir. Nov. 18, 1992) (noting that FERPA creates interests that may be vindicated in a § 1983 action); Tarka v. Cunningham, 917 F.2d 890, 891 (5th Cir.1990) (holding that "an action under 42 U.S.C. § 1983 may nevertheless be premised on an alleged violation of FERPA rights") (emphasis added); Fay v. South Colonie Central Sch. Dist., 802 F.2d 21, 33 (2d Cir.1986) (stating that FERPA creates a federal interest); Maynard v. Greater Hoyt Sch. Dist., 876 F. Supp. 1104, 1107 (D.S.D.1995) ("FERPA does establish mandatory and direct obligations regarding educational records on school districts that receive federal funds"); Belanger v. Nashua, New Hampshire, School Dist., 856 F. Supp. 40, 46 (D.N.H.1994) ("The language of FERPA reveals a congressional intent to impose obligations directly on educational agencies or institutions."); Krebs v. Rutgers, 797 F. Supp. 1246, 1256 (D.N.J.1992) (stating that FERPA creates civil rights enforceable under § 1983); Francois v. University of District of Columbia, 788 F. Supp. 31, 32 (D.D.C.1992) (noting that FERPA "creates a federal right"). It would be anomalous on the one hand to accept the principle that FERPA creates affirmative obligations and rights that may be enforced through an action under § 1983, and on the other hand to hold today that FERPA does not create such obligations and rights within the context of an enforcement action by the government. Accordingly, the Court concludes that FERPA does restrict or prohibit certain conduct, thus creating enforceable rights and obligations.

Based on the above, The Chronicle's Motion to Dismiss for Lack of Standing is DENIED.[12]

Next, the Court must address Plaintiff's motion for summary judgment. Plaintiff argues that it is entitled to summary judgment on its claim that Defendants released education records in violation of FERPA, and requests the Court to issue a permanent injunction against future violations. The material facts surrounding this matter are not in dispute.[13] Only legal issues remain to be resolved. Therefore, summary judgment is the appropriate mechanism for deciding this case.[14]

A. Summary Judgment Standard

The procedure for granting summary judgment is found in Fed.R.Civ.P. 56(c), which provides:

The judgment sought shall be rendered forthwith if the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.

The evidence must be viewed in the light most favorable to the nonmoving party. Adickes v. S. H. Kress & Co., 398 U.S. 144, 158-59, 90 S. Ct. 1598, 26 L. Ed. 2d 142 (1970). Summary judgment will not lie if the dispute about a material fact is genuine; "that is, if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S. Ct. 2505, 91 L. Ed. 2d 202 (1986). Summary judgment is appropriate, however, if the opposing party fails to make a showing sufficient to establish the existence of an element essential to that party's case and on which that party will bear the burden of proof at trial. Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S. Ct. 2548, 91 L. Ed. 2d 265 (1986); see also Matsushita Electric Industrial Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 106 S. Ct. 1348, 89 L. Ed. 2d 538 (1986).

The Sixth Circuit Court of Appeals has recognized that Liberty Lobby, Celotex and Matsushita have effected "a decided change in summary judgment practice," ushering in a "new era" in summary judgments. Street v. J.C. Bradford & Co., 886 F.2d 1472, 1476 (6th Cir.1989). The court in Street identified a number of important principles applicable in summary judgment practice. For example, complex cases and cases involving state of mind issues are not necessarily inappropriate for summary judgment. Id. at 1479. In addition, in responding to a summary judgment motion, the nonmoving party "cannot rely on the hope that the trier of fact will disbelieve the movant's denial of a disputed fact, but must `present affirmative evidence in order to defeat a properly supported motion for summary judgment.'" Id. (quoting Liberty Lobby, 477 U.S. at 257, 106 S.Ct. 2505). The nonmoving party must adduce more than a scintilla of evidence to overcome the summary judgment motion. Id. It is not sufficient for the nonmoving party to merely "`show that there is some metaphysical doubt as to the material facts.'" Id. (quoting Matsushita, 475 U.S. at 586, 106 S.Ct. 1348).

Moreover, "[t]he trial court no longer has a duty to search the entire record to establish that it is bereft of a genuine issue of material fact." Id. That is, the nonmoving party has an affirmative duty to direct the court's attention to those specific portions of the record upon which it seeks to rely to create a genuine issue of material fact.

B. Permanent Injunction Standard

Plaintiff seeks to permanently enjoin Defendants from releasing student disciplinary records to third parties, such as The Chronicle, unless otherwise permitted under FERPA. The standard for granting a permanent injunction is essentially the same as the standard for a preliminary injunction. In determining whether to issue a preliminary injunction, a court must consider:

(1) whether the moving party has a substantial probability of success on the merits; (2) whether irreparable injury will occur if the injunction is not issued; (3) whether the injunction will have a harmful effect on third parties; and (4) whether the public interest would be served by the injunction.

CSX Transp., Inc. v. Tennessee State Bd. of Equalization, 964 F.2d 548, 550-51 (6th Cir.1992). "In addition, an injunction generally should not issue if there is an adequate remedy at law." Id. at 551. The standard applicable to permanent injunctions differs in that the plaintiff must show actual success on the merits rather than a mere likelihood of success. See Amoco Prod. Co. v. Village of Gambell, AK, 480 U.S. 531, 546 n. 12, 107 S. Ct. 1396, 94 L. Ed. 2d 542 (1987).

The issue before the Court is straightforward: Are student disciplinary records "education records" as defined by FERPA, and thus, protected from public disclosure absent statutory exception? Therefore, this case involves the interpretation of a federal statute. As such, the Ohio Supreme Court's decision in State ex. rel. The Miami Student v. Miami University, 79 Ohio St.3d 168, 680 N.E.2d 956 (1997), does not dictate the Court's decision on this matter. It is axiomatic that a federal court's interpretation of federal law takes precedent over that of a state court. See Kuhnle Bros., Inc. v. County of Geauga, 103 F.3d 516, 520 (6th Cir.1997).[15]

Likewise, The Chronicle's argument that Ohio public policy favors openness and disclosure of disciplinary records has no bearing on the Court's interpretation of FERPA. The United States Congress, when it enacted FERPA, presumably weighed the various policy interests involved. Therefore, while The Chronicle has provided the Court with several policy interests that weigh against keeping disciplinary records private, those arguments are directed to the wrong branch of government. The Court's duty is to discern Congress' intent regarding FERPA by applying sound principles of statutory interpretation. It would be a gross violation of the constitutional principle of separation of powers for the Court to act as a superlegislature and decide what it thinks the law should be based on contemporary public policy interests.

Accordingly, confining its role to interpreting FERPA's meaning, the Court finds that university disciplinary records fall within the definition of "education records" as stated in 20 U.S.C. § 1232g. Therefore, absent an applicable exception, FERPA precludes the disclosure of student disciplinary records or personally identifiable information contained therein to third-parties without the consent of the student or his or her parents.

FERPA states in pertinent part:

No funds shall be made available under any applicable program to any educational ... institution which has a policy or practice of permitting the release of education records (or personally identifiable information contained therein ...) of students without the written consent of their parents to any individual, agency, or organization....

20 U.S.C. 1232g(b) (1). The Act additionally provides that "[n]o funds shall be made available under any applicable program to any educational ... institution which has a policy or practice of releasing, or providing access to, any personally identifiable information in education records," except as expressly permitted under the Act. 20 U.S.C. § 1232g(b) (2). Pursuant to these provisions, the Department of Education has promulgated regulations requiring that a parent or eligible student "shall provide a signed and dated written consent before an educational ... institution [may] disclose personally identifiable information from the student's education records," except as otherwise allowed under the Act. 34 C.F.R. § 99.30(a).[16]

The issue before the Court is the scope of the term "education records," and *1149 whether it includes student disciplinary records. FERPA broadly defines "education records" as follows:

[T]hose 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.

20 U.S.C. § 1232g(a) (4). As the Court stated in its Order granting a preliminary injunction in this case: "It is abundantly clear that the disciplinary records that are the subject of the instant case satisfy both prongs of the statutory definition of education records." (Doc. 6). First, the disciplinary records at issue in this case clearly "contain information directly related to a student." The offenders being disciplined, and often the victims of the offense, are students of the respective universities, and the matters addressed in the disciplinary records pertain to actions committed or allegedly committed by or against those students. Second, these records are "maintained" by Defendants Ohio State University and Miami University. Accordingly, the plain language of the statute indicates that Defendants' student disciplinary records are covered by the privacy protections of FERPA. See Belanger v. Nashua, New Hampshire, School Dist., 856 F. Supp. 40, 48 (D.N.H.1994) ("The plain meaning of [FERPA's] statutory language reveals that Congress intended for the definition to be broad in its scope."); DTH Publishing Corp. v. University of North Carolina, 128 N.C.App. 534, 496 S.E.2d 8, 13 (1998) (noting the breadth of FERPA's definition of "education records").[17]

A court must adhere to the plain language of a statute, unless a contrary congressional intent is clearly established in the legislative history. See, e.g., Ardestani v. I.N.S., 502 U.S. 129, 135, 112 S. Ct. 515, 116 L. Ed. 2d 496 (1991) ("The `strong presumption' that the plain language of the statute expresses congressional intent is rebutted only in `rare and exceptional circumstances,', when a contrary legislative intent is clearly expressed.") (quoting Rubin v. United States, 449 U.S. 424, 430, 101 S. Ct. 698, 701, 66 L. Ed. 2d 633 (1981)); Parker-Hannifin v. C.I.R., 139 F.3d 1090, 1095 (6th Cir.1998) ("We begin with the language of the statute itself, and interpret it according to its plain language absent evidence of a contrary legislative intent[.]") (citations omitted); Bradley v. Austin, 841 F.2d 1288, 1293 (6th Cir.1988) (stating that if the court finds statutory text unambiguous, the text is conclusive unless there is a clearly expressed legislative intent to the contrary). The Court is unable to find any contrary congressional intent regarding the scope of the definition of "education records" in FERPA's rather sparse legislative history.

The purpose of the Act is "to assure parents of students ... access to their education records and to protect such individuals' rights to privacy by limiting the transferability of their records without their consent." Joint Statement, 120 Cong.Rec. 39858, 39862 (Dec. 13, 1974) (emphasis added). Interpreting the term "education records" so as to not include student disciplinary records would permit public disclosure of such records and would lessen students privacy rights under FERPA. This would undermine one of the stated purposes of FERPA, as it would allow universities to release students' disciplinary records without consent.

Additionally, the legislative history contains no statements suggesting that Congress intended to exclude student disciplinary records from its definition of "education records," or that "education records" should be limited to records containing academic information. Thus, there is nothing to contradict the plain meaning of FERPA's text.[18]

Other principles of statutory construction also suggest that the term "education records" should be interpreted to include student disciplinary records. "Under the principle of statutory construction expression unius est exclusio alterius, the enumeration of specific exclusions from the operation of a statute is an indication that the statute should apply to all cases not specifically excluded." See United States v. Rocha, 916 F.2d 219, 243 (5th Cir.1990) (citations omitted), cert. denied, 500 U.S. 934, 111 S. Ct. 2057, 114 L. Ed. 2d 462 (1991); see also Sunshine Development, Inc. v. FDIC, 33 F.3d 106, 116 (1st Cir.1994).

Applying the principle of expresio unius to the instant case supports the conclusion that student disciplinary records are included within the definition of "education records." FERPA contains several provisions that exempt certain records from the definition of "education records." Section 1232g(4) (B) states, in general, that the term "education records" does not include (i) records of teachers or school administrators that are in the sole possession of the maker and are not accessible to anyone else except a substitute; (ii) certain law enforcement records; (iii) employment records maintained in the normal course of business; and (iv) records of medical or psychological treatment regarding students eighteen years of age or older. See 20 U.S.C. § 1232g(4) (B) (i)-(iv).

The fact that Congress included several detailed exceptions to its definition of "education records" indicates that it knew precisely what types of records it wanted included within the definition, and conversely, what types it wanted to exclude. Therefore, by failing to expressly except student disciplinary records from the definition of "education records," Congress must have intended such records to be included within the otherwise broad definition.

Congress' subsequent legislative actions regarding FERPA also suggest that it intended student disciplinary records to be covered by the statute. Congress has amended FERPA on several occasions to permit the release of disciplinary records in certain circumstances. For example, § 1232g(b) (6) (A) permits schools to disclose the results of any disciplinary proceeding to the victim of the crime that was the subject of the proceeding if it was a crime of violence or a nonforcible sex offense. Additionally, in October 1998, Congress expanded on this exception to allow educational institutions to release to the public at large the final results of any disciplinary proceeding conducted against a student who has committed a crime of violence or a nonforcible sex offense, if the institution finds that the criminal act constituted a violation of the institution's rules or policies. See § 1232g(b) (6) (B). Congress has also enacted a provision requiring the disclosure of disciplinary records to both students accused of sexual assault and the alleged victims of the sexual assault. See 20 U.S.C. § 1092(f) (8) (B) (iii).

The fact that Congress has enacted various narrow provisions permitting the disclosure of student disciplinary records in limited circumstances shows that Congress obviously is concerned with protecting the privacy of disciplinary records. More importantly, it indicates that Congress must have intended FERPA to prohibit the release of student disciplinary records; otherwise it would be unnecessary for Congress to enact statutory exceptions permitting their limited disclosure. Stated otherwise, to hold that Defendants' disciplinary records are not covered by FERPA would render the above-mentioned exceptions redundant and superfluous, a result the Court should attempt to avoid. See, e.g., Hohn v. United States, 524 U.S. 236, 249, 118 S. Ct. 1969, 141 L. Ed. 2d 242 (1998) (stating that the Court is reluctant to adopt a construction making another statutory provision superfluous).

c. Agency Interpretation of "Education Records"

The Department of Education's interpretation of FERPA, which is entitled to deference, also supports the conclusion that student disciplinary records are "education records" within the meaning of FERPA.[19] The United States Supreme Court, in Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 104 S. Ct. 2778, 81 L. Ed. 2d 694 (1984), set forth the analytical framework regarding statutory interpretation where federal agencies are involved. The Court stated that if the intent of Congress is clear from the plain language of the statute, the court, as well as the agency involved, must give effect to such unambiguously expressed intent. See id. at 842-43, 104 S. Ct. 2778. If, however, the court determines that a provision in the statute is ambiguous and the intent of Congress is unclear, the court must defer to an agency's reasonable interpretation of the provision. See id. at 843-45, 104 S. Ct. 2778; see also Griggs v. Duke Power Co., 401 U.S. 424, 433-34, 91 S. Ct. 849, 28 L. Ed. 2d 158 (1971) ("The administrative interpretation of the Act by the enforcing agency is entitled to great deference."); Arrow Elec. Co. v. NLRB, 155 F.3d 762, 765 n. 1 (6th Cir.1998); Bartling v. Fruehauf Corp., 29 F.3d 1062, 1072 (6th Cir.1994); Hamama v. INS, 78 F.3d 233, 239 (6th Cir.1996) (stating that the court is to "defer to an agency's reasonable interpretation of a statute it administers unless `the intent of Congress is clear.'") (citing Chevron, 467 U.S. at 843-44, 104 S.Ct. 2778).

The Department of Education, which is the agency responsible for administering and enforcing FERPA, stated during regulatory proceedings that it interprets "education records," as defined in FERPA, to include student disciplinary records:

The Secretary remains legally constrained to conclude that records of an institution's disciplinary action or proceeding are "education records" under FERPA, not law enforcement unit records, and that excluding these records from the definition of "education records" can be accomplished only through a statutory amendment of FERPA by Congress.

. . . . .

The Secretary has carefully analyzed the statutory and regulatory authority to address these concerns. Based on the broad definition of "education records," which includes those records, files, documents, and other materials that contain information directly related to a student, except those that are specifically excluded by statute, all disciplinary records, including those related to non-academic or criminal misconduct by students, are "education records" subject to FERPA. ... Although the Secretary is equally concerned with the problem of crime on campus, it is clear that only Congress has the authority to change the statutory provisions of FERPA to permit disclosure of disciplinary records without prior consent.

Rules and Regulations, Department of Education, 60 F.R. 3464, 3465 (Jan. 17, 1995). Assuming arguendo that the Court found FERPA's plain language and its legislative history ambiguous, it would defer to the Department's interpretation because it is a reasonable one. Thus, the result remains unchanged student disciplinary records are protected from disclosure under FERPA, unless otherwise permitted by a statutory exception.[20]

d. Statutory Exceptions to FERPA

Having concluded that FERPA's definition of "education records" includes Defendants' student disciplinary records, the Court must determine whether any of FERPA's exceptions apply. The Chronicle argues that Defendants' student disciplinary records are not protected by FERPA because they are actually law enforcement records, which Congress has expressly excluded from FERPA's coverage.

FERPA states that "[t]he term `education records' does not include ... 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[.]" 20 U.S.C. § 1232g(a) (4) (B) (ii). A "[l]aw enforcement unit means any ... component *1153 of an educational agency or institution ... that is officially authorized or designated by that agency or institution to (i)[e]nforce any local, State, or Federal law ... or (ii)[m]aintain the physical security and safety of the agency or institution." 34 C.F.R. § 99.8(a) (1) (i)-(ii). "A component of an educational agency or institution does not lose its status as a law enforcement unit if it also performs other, non-law enforcement functions ... including investigation of incidents or conduct that constitutes or leads to a disciplinary action or proceedings against the student." 34 C.F.R. § 99.8(a) (2).

The Court believes that FERPA's "law enforcement records" exception is capable of more than one interpretation. One could construe the language to include disciplinary records of the type at issue in this case. Due to the fact that the scope of FERPA's "law enforcement records" exception is ambiguous, the Court defers to the Department's detailed definitions regarding this exception, which the Court finds are reasonable interpretations of the statute. See Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 842-44, 104 S. Ct. 2778, 81 L. Ed. 2d 694 (1984).[21]

The Department clearly has distinguished "law enforcement records" from "disciplinary records." In its regulations, the Department states that: "Records of a law enforcement unit does not mean ... [r]ecords created and maintained by a law enforcement unit exclusively for a non-law enforcement purpose, such as a disciplinary action or proceeding conducted by the educational agency or institution." 34 C.F.R. § 99.8(b) (2) (ii). Furthermore, the Department defines "disciplinary action or proceeding" as "the investigation, adjudication, or imposition of sanctions by an educational agency or institution with respect to an infraction or violation of the internal rules of conduct applicable to students of the agency or institution." 34 C.F.R. § 99.3.[22]

Based on the Department's regulations and other statements, the records at issue *1154 in this case clearly are "[r]ecords created and maintained ... exclusively for a non-law enforcement purpose, such as a disciplinary action or proceeding conducted by the education agency or institution." 34 C.F.R. § 99.8(b) (2) (ii). Accordingly Defendants' disciplinary records are not "records of a law enforcement unit," and thus, they do not fall within FERPA's exception for law enforcement records.

e. First Amendment Right of Access

Alternatively, The Chronicle argues that to the extent that FERPA is interpreted to prohibit public disclosure of student disciplinary records, it violates the First Amendment of the United States Constitution. Specifically, The Chronicle asserts that the public has a First Amendment right of access to government records and other information within its control, and FERPA limits this right. Further, it maintains that the government can overcome this right only by showing that FERPA serves an important government interest that outweighs the public's First Amendment right. It is unnecessary, however, for the Court to inquire into the government's interests in prohibiting the release of university disciplinary records, because the First Amendment does not confer a public right of access to university disciplinary records, such as those at issue in this case.

The First Amendment prohibits Congress from making any law "abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances." U.S. Const. amend. I. It is well settled that the right to receive information "is an inherent corollary of the rights of free speech and press that are explicitly guaranteed by the Constitution...." Board of Educ. v. Pico, 457 U.S. 853, 866-67, 102 S. Ct. 2799, 73 L. Ed. 2d 435 (1982). However, this principle assumes the presence of a willing speaker and a willing listener; the right to receive information cannot be stretched to the point of creating a First Amendment right allowing the public to compel disclosure of all government-held information. In other words, there is no affirmative constitutional duty requiring the government to disclose non-public information within its possession.

In Houchins v. KQED, Inc., 438 U.S. 1, 98 S. Ct. 2588, 57 L. Ed. 2d 553 (1978) (Burger, C.J., plurality opinion), the Court had to determine whether respondent broadcasting company, as a member of the public, had a First and Fourteenth Amendment right of access to a county jail. See id. at 3-6, 98 S. Ct. 2588.[23] While Justice Burger's plurality opinion acknowledged that "conditions in jails and prisons are clearly matters `of great public importance[,]'" id. at 8, 98 S. Ct. 2588 (quoting Pell v. Procunier, 417 U.S. 817, 830 n. 7, 94 S. Ct. 2800, 41 L. Ed. 2d 495 (1974)), it held that "[n]either the First Amendment nor the Fourteenth Amendment mandates a right of access to government information or sources of information within the government's control." See id. at 15, 98 S. Ct. 2588. Moreover, the Court noted that "[t]his Court has never intimated a First Amendment guarantee of a right of access to all sources of information within government control." Id. at 9, 98 S. Ct. 2588. The Court also stated that "[t]here is an undoubted right to gather news `from any source by means within the law,' but that affords no basis for the claim that the First Amendment compels othersprivate persons or governmentsto supply information." Id. at 11, 98 S. Ct. 2588 (citations omitted). Justice Stewart, in his concurring opinion, agreed that "[t]he First and Fourteenth Amendments do not guarantee the public a right of access to information generated or controlled by the government," but rather "[t]he Constitution does no more than assure the public and the press equal access once government has opened its doors." Id. at 16, 98 S. Ct. 2588 (Stewart, J., concurring).

Several lower federal courts have also held in a variety of contexts that the First Amendment does not compel the government to provide public access to information within its control. See United States v. Gonzales, 150 F.3d 1246, 1254 (10th Cir.1998) (holding that no First Amendment right of access applies to judicial administrative documents), cert. denied, 525 U.S. 1129, 119 S. Ct. 918, 142 L. Ed. 2d 915 (1999); Lanphere & Urbaniak v. Colorado, 21 F.3d 1508, 1511 (10th Cir.1994) (holding that law prohibiting access to criminal justice records from those intending to use the records for commercial purposes did not violate First Amendment on access grounds, because "there is no constitutional right, and specifically no First Amendment right of access to government records"), cert. denied, 513 U.S. 1044, 115 S. Ct. 638, 130 L. Ed. 2d 544 (1994); El Dia, Inc. v. Hernandez Colon, 963 F.2d 488, 494-95 (1st Cir.1992) (stating that the Supreme Court has never recognized a constitutional right of access to executive branch documents); Calder v. IRS, 890 F.2d 781, 784 (5th Cir.1989) (stating that administrative agency was not compelled to disclose documents in its possession because "[q]uite simply, the right to speak and publish does not carry with it an unrestricted license to gather information"); Capital Cities Media, Inc. v. Chester, 797 F.2d 1164, 1167-76 (3d Cir.1986) (examining the text and history of the First Amendment and concluding that there is no First Amendment right of access to state administrative agency records); McGehee v. Casey, 718 F.2d 1137, 1147 (D.C.Cir.1983) ("As a general rule, citizens have no first amendment right of access to traditionally nonpublic government information."); Norwood v. Slammons, 788 F. Supp. 1020, 1027 (W.D.Ark.1991) (holding that FERPA does not violate the First Amendment because " there is no constitutional right of general public access to the disciplinary or investigatory records of a post-secondary educational institution") (emphasis added); Gartner v. United States Information Agency, 726 F. Supp. 1183, 1188 (S.D.Iowa 1989) (stating that "it is one thing to say that the government may not restrict the plaintiffs from telling the news to their readers, and quite another to argue that the government has a constitutional duty to supply the plaintiffs with news to write about[,]" and continuing by noting "[i]t is for Congress to establish the extent of access to the government documents; the first amendment does not do so."); Herald Co. v. McNeal, 511 F. Supp. 269, 273 (E.D.Mo.1981) (holding that "plaintiff has no constitutional right of access to the [police records] it now seeks[,]" and that "[t]he Constitution is not a `Freedom of Information Act'").

The Court's refusal to recognize a First Amendment right of access to student disciplinary records is grounded in logic as well as precedent. Setting the scope of access to government records is a legislative matter that does not implicate First Amendment principles. As Justice Stewart stated:

"There is no constitutional right to have access to particular government information, or to require openness from the bureaucracy. The public's interest in knowing about its government is protected by the guarantee of a Free Press, but the protection is indirect. The Constitution itself is neither a Freedom of Information Act nor an Official Secrets Act."

"The Constitution, in other words, establishes the contest, not its resolution. Congress may provide a resolution, at least in some instances, through carefully drawn legislation. For the rest, we must rely, as so often in our system we must, on the tug and pull of the political forces in American Society."

Houchins v. KQED, Inc., 438 U.S. 1, 14-15, 98 S. Ct. 2588, 57 L. Ed. 2d 553 (1978) (quoting Stewart, "Or of the Press," 26 Hastings L.J. 631, 636 (1975)); see also Capital Cities Media, 797 F.2d at 1168-71 (discussing how the inner-workings of Government have traditionally been conducted behind closed doors and noting that "decisions as to how much governmental information must be disclosed in order to make democracy work historically have been regarded as political decisions to be made by the people and their elected representatives"). Indeed, Congress and state legislatures have enacted numerous Freedom of Information Acts and Sunshine Acts.

To hold that the First Amendment compels disclosure of government-held information would render these federal and state freedom of information statutes meaningless by supplanting them with what essentially would be a constitutional Freedom of Information Act. This would leave the courts with the task of fashioning the scope of a constitutional right of access without any principled basis or standard to use for assistance. The Supreme Court acknowledged this dilemma in Houchins:

There is no discernable basis for a constitutional duty to disclose, or for standards governing disclosure of or access to information. Because the Constitution affords no guidelines, absent statutory standards, hundreds of judges would, under the Court of Appeals' approach, be at large to fashion ad hoc standards, in individual cases, according to their own ideas of what seems "desirable" or "expedient." We, therefore, reject the Court of Appeals' conclusory assertion that the public and the media has a First Amendment right to government information regarding the conditions of jails and their inmates and presumably all other public facilities such as hospitals and mental institutions.

Houchins, 438 U.S. at 14, 98 S. Ct. 2588; see also Capital Cities Media, 797 F.2d at 1171 ("Neither the free speech clause nor the structure of the government described by the Constitution yields any principled basis for deciding which government information must be made available to the citizenry and which need not."). Accordingly, it is wise to leave to the legislative branch the issue of what information the government must publicly disclose.

The Court notes that the Supreme Court has recognized a First Amendment right of access to criminal trials and related criminal proceedings. See Richmond Newspapers v. Virginia, 448 U.S. 555, 580, 100 S. Ct. 2814, 65 L. Ed. 2d 973 (1980) (finding an implicit First Amendment right to attend criminal trials); Globe Newspaper Co. v. Superior Court, 457 U.S. 596, 602, 102 S. Ct. 2613, 73 L. Ed. 2d 248 (1982) (holding that state statute prohibiting public from criminal trials of specified sexual offenses involving a victim under the age of 18 violated the First Amendment); Press-Enterprise Co. v. Superior Court, 464 U.S. 501, 505, 104 S. Ct. 819, 78 L. Ed. 2d 629 (1984) (Press-Enterprise I) (holding that First Amendment right of public access to criminal trials extends to voir dire proceedings); Press-Enterprise Co. v. Superior Court, 478 U.S. 1, 10, 106 S. Ct. 2735, 92 L. Ed. 2d 1 (1986) (Press-Enterprise II) (extending the First Amendment right of access to criminal preliminary hearings). In these cases, the Supreme Court reasoned that the First Amendment protected access to criminal trials because such trials historically have been open to the public and because a right of access plays a significant positive role in the functioning of the criminal trial process. See, e.g., Globe Newspaper Co. v. Superior Court, 457 U.S. 596, 605-06, 102 S. Ct. 2613, 73 L. Ed. 2d 248 (1982).

However, the Supreme Court has not extended this right of access outside the realm of criminal trials and related criminal proceedings. See Globe Newspaper Co., 457 U.S. at 611, 102 S. Ct. 2613 (O'Connor, J., concurring) (stating that "neither Richmond Newspapers nor the Court's decision today carry any implications outside the context of criminal trials"); El Dia, Inc. v. Hernandez Colon, 963 F.2d 488, 495 (1st Cir.1992) ("[W]e seriously question whether Richmond Newspaper and its progeny carry positive implications favoring rights of access outside the criminal justice system."); Calder v. IRS, 890 F.2d 781, 783 (5th Cir.1989) (declining to extend Richmond line's right of access to administrative agency documents). Therefore, the Court believes that Richmond and its progeny only apply when criminal proceedings are involved, and that Houchins applies to other types of government information. See Capital Cities Media, 797 F.2d at 1173 (stating that the Richmond line of cases do not expressly or impliedly overrule Houchins).

The instant case involves records of student disciplinary proceedings. These proceedings are not criminal in nature as they only regulate the relationship between the student and the university, and have no bearing on a student's legal rights or obligations under state or federal criminal laws. See Miami University Code of Student Conduct, Plaintiff's Ex. 7 to Motion for Summary Judgment ("If a student breaks a law that also violates University standards of conduct, that student may be held accountable by both civil authorities and the University."); The Ohio State University Code of Student Conduct, Plaintiff's Ex. 8 to Motion for Summary Judgment (stating that "students also are subject to city, county, state, and federal law" and "[t]herefore, legal action in addition to university disciplinary action may occur"); cf. DTH Publishing Corp. v. University of North Carolina, 128 N.C.App. 534, 496 S.E.2d 8, 15 (1998) (stating that University of North Carolina's "sanctions are limited in scope in that they only regulate students' relationship with the University and do not have any dispositive impact on students' legal rights in the larger community."). In fact, university disciplinary proceedings do not provide students with many of the procedural due process protections that criminal defendants are afforded. See, e.g., Osteen v. Henley, 13 F.3d 221, 225-26 (7th Cir. 1993) (holding that student's due process rights at university disciplinary proceeding did not include the right to have counsel present at the proceeding, because "[t]o recognize such a right would force student disciplinary proceedings into the mold of adversary litigation"); Jenkins v. Louisiana State Bd. of Educ., 506 F.2d 992, 1000 (5th Cir.1975) (noting that the standards of due process applicable to university disciplinary proceedings are "not to be equated with that essential to a criminal trial and the notice of charges need not be drawn with the precision of a criminal indictment"); Nash v. Auburn Univ., 621 F. Supp. 948, 953 (M.D.Ala.1985) (stating that "procedural due process in the context of a school disciplinary proceeding does not require all the trappings or procedural safeguards of a criminal trial"); Jaksa v. Regents of Univ. of Michigan, 597 F. Supp. 1245, 1250 (E.D.Mich.1984) (stating that "a school disciplinary proceeding is not a criminal trial, nor is a student accused of cheating entitled to all the procedural safeguards afforded criminal defendants"). Accordingly, this Court declines to extend Richmond and its progeny to Defendants' student disciplinary records.

Even if the Court were to apply the principles from the Richmond line of cases, it would not affect the Court's conclusion that the public does not enjoy a First Amendment right of access to Defendants' student disciplinary records. The right of access articulated in Richmond, Globe and the Press-Enterprise I and Press-Enterprise II cases is not absolute. See Press-Enterprise II, 478 U.S. at 9, 106 S. Ct. 2735. Rather, the Supreme Court has stated that for the First Amendment right of access to apply, two factors must be present. First, the court must determine whether the information sought has "historically been open to the press and general public." Id. at 8, 106 S. Ct. 2735. Second, the court must determine whether "public access plays a significant positive role in the functioning of the particular process in question." Id. at 8-9, 106 S. Ct. 2735. If the information or proceeding in question "passes these tests of experience and logic, a qualified First Amendment right of public access attaches." Id. at 9, 106 S. Ct. 2735. The qualified right can be overcome only by the government showing that an overriding interest requires restricted access, and that the restriction is narrowly tailored to serve that interest. See id. at 9-10, 106 S. Ct. 2735; see also United States v. Gonzales, 150 F.3d 1246, 1256 (10th Cir.1998), cert. denied, 525 U.S. 1129, 119 S. Ct. 918, 142 L. Ed. 2d 915 (1999); Capital Cities Media, 797 F.2d at 1174.

Applying the Supreme Court's two-pronged test to this case, the Court concludes that no First Amendment right of access arises. First, Defendants and The Chronicle have not made any argument nor presented any evidence that university disciplinary proceedings and records traditionally have been open to the public. And the fact that FERPA has been in existence for approximately twenty-six years supports the assumption that such proceedings and records do not have a tradition of openness.

Second, Defendants and The Chronicle have not shown that requiring university disciplinary proceedings and records to be open to the public would play a significant positive role in the functioning of such proceedings. In fact, it is possible that requiring access to disciplinary records would be detrimental to the functioning of disciplinary proceedings. For example, opening these records to the public could force universities to afford students more due process protections in the disciplinary process. University disciplinary proceedings are not criminal trials; rather, they are meant to safeguard a universities' primary purpose, which is to educate its students. See Board of Curators v. Horowitz, 435 U.S. 78, 88, 98 S. Ct. 948, 55 L. Ed. 2d 124 (1978) ("A school is an academic institution, not a courtroom or administrative hearing room."); Goss v. Lopez, 419 U.S. 565, 583, 95 S. Ct. 729, 42 L. Ed. 2d 725 (1975) (refusing to impose too many due process requirements on disciplinary proceedings because "further formalizing the suspension process and escalating its formality and adversary nature may not only make it too costly as a regular disciplinary tool but also destroy its effectiveness as part of the teaching process"); Osteen v. Henley, 13 F.3d 221, 225-26 (7th Cir.1993); Jenkins v. Louisiana State Bd. of Educ., 506 F.2d 992, 1004 (5th Cir.1975) (stating that university regulations "ask for adherence to standards of conduct which befit a student [and] enhance the educational purposes of the school[.]"); Jaksa v. Regents of University of Michigan, 597 F. Supp. 1245, 1250 (E.D.Mich.1984). Therefore, requiring more openness and increased formality would make disciplinary proceedings more costly and could hinder their effectiveness as a mechanism for safeguarding the educational atmosphere of colleges and universities. See Goss, 419 U.S. at 583, 95 S. Ct. 729; Osteen, 13 F.3d at 225-26; Jaksa, 597 F. Supp. at 1250. Additionally, victims and students in general may be less inclined to report violations of university regulations or to pursue the disciplinary process if they know that any disciplinary proceedings that ensue will be open to the public.[24]

In sum, the Court holds that FERPA does not violate the First Amendment. The citizenry does not possess a First Amendment right of access to the disciplinary records of public universities. It is a legislative decision as to where the balance between access and privacy must be struck.

2. Irreparable Harm and Adequate Legal Remedy

As stated above, one of the purposes for enacting FERPA was "to protect [students'] rights to privacy by limiting the transferability of their records without their consent." Joint Statement, 120 Cong.Rec. 39858, 39862 (Dec. 13, 1974). Defendants' continued release of student disciplinary records clearly will injure this privacy interest that Congress sought to protect. Additionally, the United States has an interest in ensuring that recipients of federal funds pursuant to a grant agreement comply with the terms and conditions attached to the grant. In this case, both Defendants signed agreements with the Department of Education promising to comply with FERPA in exchange for federal funds. Defendants' release of student disciplinary records in violation of FERPA breaches the terms of their agreements with the Department, and consequently, damages the interests of the Department and the United States.

The Court's inquiry as to whether the Plaintiff will suffer irreparable harm is intertwined with the issue of whether there exists an adequate remedy at law. If a Plaintiff cannot get redress for its injuries through alternate legal remedies, it follows that it will suffer irreparable harm.

In this case, The Chronicle argues that Plaintiff has adequate remedies at law in the form of administrative remedies. Specifically, The Chronicle submits that if Plaintiff believes Defendants are violating FERPA it can (1) withhold funds from Defendants, (2) issue cease and desist orders, or (3) enter into compliance agreements with Defendants. See 20 U.S.C. § 1234c.

As an initial matter, the Court reiterates that Congress has expressly authorized the Secretary of Education to "take any other action authorized by law with respect to the recipient" in order to enforce FERPA. 20 U.S.C. § 1234c(a) (4). There is no requirement that the Secretary resort to the administrative remedies first; the Secretary has the option to choose the method of enforcement best suited for the situation.

Moreover, none of the three administrative remedies available to the Department would provide an adequate remedy in this case. First, withholding funds from Ohio State University and Miami University would decrease university resources, and thus, would hurt the students for whom FERPA was designed to protect. Furthermore, there would be no guarantee such action would compel Defendants to comply with FERPA.

Second, issuing a cease and desist order would not be adequate to restrain Defendants' from releasing student disciplinary records without consent. Under the enforcement provisions relating to FERPA, a cease and desist order is not self-executing. Rather, the Department can only enforce such an order by withholding funds or by referring the matter to the Attorney General for enforcement. See 20 U.S.C. § 1234e(e) (1) and (2). Therefore, absent additional enforcement measures, a cease and desist order under § 1234e merely serves as notice to the fund recipient that the Department considers the recipient's actions to be in violation of FERPA. Similarly, a compliance agreement would be inadequate because Defendants cannot be compelled to enter into such an agreement. See 20 U.S.C. § 1234f.

Finally, the Court notes that the Ohio Supreme Court's opinion, in State ex. rel. The Miami Student v. Miami University, 79 Ohio St.3d 168, 680 N.E.2d 956 (1997), has made any administrative remedy inadequate. By interpreting FERPA to exclude student disciplinary records, the Ohio Supreme Court has forced Defendants to release such records under the Ohio Public Records Act, Ohio Rev.Code § 149.43. Agency interpretations of FERPA to the contrary will have no effect. Indeed, that is why this lawsuit was filed in the first place.

Accordingly, the only adequate remedy available in this case is a federal court order interpreting FERPA to cover student disciplinary records, and enjoining *1160 Defendants from releasing such records, except as permitted under FERPA.

3. Harm to Third Parties and Public Interest

The Chronicle and Amici in Opposition to Plaintiff argue that university students, prospective students and parents are substantially harmed when universities are prohibited from releasing disciplinary records. Specifically, they submit that the public interest in receiving information is at its highest when issues of personal safety and the prevention of crime are involved.

The Court agrees that matters involving personal safety and prevention of crime are important public issues. Nonetheless, these interests will not be harmed by an injunction in this case. The public's interest in receiving information about crime on college campuses is satisfied even without being able to access personally identifiable information in student disciplinary records. As part of the Student Right-to-Know Act, Congress requires universities to publish statistics concerning the occurrence of various crimes committed on campus, such as murder, rape, robbery, aggravated assault, liquor-law violations, drug-abuse violations and violent hate crimes. See 20 U.S.C. § 1092(f); 34 C.F.R. § 668.47. The Court believes that these disclosures are adequate to inform students, prospective students and parents about the safety of various college campuses. Releasing the personally identifiable information of the students accused or convicted of violating university regulations, as well as information about the victims, would not further advance the public's interest. Moreover, many offenses that constitute university code violations will also be charged under state or federal criminal laws. The information concerning those crimes, including any personally identifiable information regarding the accused or the victims, often will be available to the public.

In sum, the Court believes that the harm to third parties specifically, students, prospective students, and parents that may arise from an injunction enforcing FERPA is slight. Additionally, the public, while certainly benefiting from laws that promote openness in public records, also benefits from the privacy accorded students through FERPA. Congress, through FERPA, has balanced the interests of privacy versus public disclosure and the Court is in no position to second guess it.

Based on the above, the Court finds that the student disciplinary records of Defendants Ohio State University and Miami University are education records as defined in FERPA, 20 U.S.C. § 1232g(a) (4) (A). Furthermore, the Court finds that Defendants have violated FERPA by releasing student disciplinary records and personally identifiable information contained therein to third parties without student or parental consent. Accordingly, Plaintiff's motion for summary judgment is GRANTED. Defendants are hereby PERMANENTLY ENJOINED from releasing student disciplinary records or any "personally identifiable information" contained therein, as defined in FERPA and its corresponding regulations, except as otherwise expressly permitted under FERPA.

IT IS SO ORDERED.

NOTES

[1] The court did not force the university to disclose the names, social security numbers, or student identification numbers of the accused or convicted students because the newspaper had not sought disclosure of this information in its original requests. See id. at 959.

[2] FERPA defines "education records" as

those records, files, documents, and other materials which

(i) contain information directly relating to a student; and

(ii) are maintained by an educational agency or institution or by a person acting for such agency or institution.

20 U.S.C. § 1232g(4) (A). In reaching its holding in Miami University, the Ohio Supreme Court adopted the reasoning of the Georgia Supreme Court, which had addressed nearly the same issue in Red & Black Publishing Co. v. Board of Regents, 262 Ga. 848, 427 S.E.2d 257 (1993). The Ohio Supreme Court did not apply any principles of statutory construction regarding FERPA, nor did it indicate why the substantially broad definition of "education records" contained in FERPA must be limited to "educationally related" or "academic" information.

[3] The United States filed this action on its own behalf and on behalf of the United States Department of Education. (Compl.¶ 2). Both the United States and the Department of Education are "real parties in interest" under Rule 17(a) of the Federal Rules of Civil Procedure. The Department is a proper party because it is the entity authorized to enforce the provisions of FERPA. See 20 U.S.C. §§ 1232g(f) and 1234c. The United States is a proper party because the law permits the United States to sue in its own name even though a federal agency could have proceeded independently. See United States v. Stuart, 392 F.2d 60, 63-64 (3d Cir.1968); United States v. Larkin, Hoffman, Daly & Lindgren, Ltd., 841 F. Supp. 899, 906 (D.Minn.1993); United States v. Lasco Indus., 531 F. Supp. 256, 260 (N.D.Tex.1981); United States v. Techno Fund, Inc., 270 F. Supp. 83, 84-85 (S.D.Ohio 1967); see also 6A Charles Alan Wright, Arthur R. Miller & Mary Kay Kane, Federal Practice and Procedure § 1553 (2d ed. 1990) ("Most of the courts that have faced this question have held that even though the agency might have proceeded on its own behalf, the United States is also a real party in interest.").

[4] Amici in opposition to plaintiff are: (1) Student Press Law Center; (2) the Reporter's Committee for Freedom of the Press; (3) the Society of Professional Journalists; (4) the Ohio Coalition for Open Government; (5) The Miami Student; and (6) The Ohio State University Lantern. Together, these parties filed an Amicus Brief opposing the United States' request for injunctive relief.

[5] The Court notes that there is one major difference between the statutory enforcement scheme under Title VI and that which is present under FERPA. The administrative regulations promulgated under Title VI specify that "any other means authorized by law" include, but are not limited to, "(1) a reference to the Department of Justice with a recommendation that appropriate proceedings be brought to enforce any rights of the United States under any law of the United States ... or any assurance or other contractual undertaking ...." 45 C.F.R. § 80.8. The Department of Education has not promulgated a similar regulation under FERPA.

Nevertheless, the fact that the agency interpreted this phrase in Title VI as authorizing civil enforcement actions and the fact that courts accepted it as a reasonable interpretation supports the conclusion that the very similar enforcement language in FERPA also authorizes such actions.

[6] The Chronicle argues that two canons of statutory construction, ejusdem generis and noscitur a sociis, lead to the conclusion that Congress intended the phrase "take any other action authorized by law" to authorize only enforcement mechanisms similar to the three specific remedies that precede the phrase in § 1234c.

"Under the principle of ejusdem generis, when a general term follows a specific one, the general term should be understood as a reference to subjects akin to the one with specific enumeration." Norfolk & Western Ry. Co. v. American Train Dispatchers Association, 499 U.S. 117, 129, 111 S. Ct. 1156, 113 L. Ed. 2d 95 (1991). Similarly, "noscitur a sociis" provides that a word is known by the company it keeps. See Babbitt v. Sweet Home Chapter of Communities for a Great Oregon, 515 U.S. 687, 694, 115 S. Ct. 2407, 132 L. Ed. 2d 597 (1995). The purpose of these canons is to avoid giving unintended breadth to a statutory provision that is ambiguous on its face. See Garcia v. United States, 469 U.S. 70, 105 S. Ct. 479, 83 L. Ed. 2d 472 (1984); Newsom v. Friedman, 76 F.3d 813, 820 (7th Cir.1996) (quoting Jarecki v. G.D. Searle & Co., 367 U.S. 303, 307, 81 S. Ct. 1579, 6 L. Ed. 2d 859 (1961)).

While the Court does not ignore the logic of these canons, it nonetheless believes that they do not dictate the result here. These canons do not control "when the whole context dictates a different conclusion[,]" or when there is no uncertainty regarding the statutory language. Norfolk & Western Ry. Co., 499 U.S. at 129, 111 S. Ct. 1156; see also United States v. Veal, 153 F.3d 1233, 1246 (11th Cir.1998), cert. denied 526 U.S. 1147, 119 S. Ct. 2024, 143 L. Ed. 2d 1035 (1999). As stated above, the Court finds that the literal meaning of the phrase "take any other action authorized by law" includes civil actions for declaratory and injunctive relief. Therefore, the Court need not look to the principles of ejusdem generis and noscitur a sociis for assistance in interpreting the statute. See Harrison v. PPG Indus., Inc., 446 U.S. 578, 588, 100 S. Ct. 1889, 64 L. Ed. 2d 525 (1980) (holding that ejusdem generis was not applicable in interpreting § 307(b) (1) of the Clean Air Act because there was no uncertainty in the phrase "any other final action", and also stating that the expansive language of the phrase "must be construed to mean exactly what it says, namely any other final action.") United States v. Rodriguez-Rios, 14 F.3d 1040, 1044-45 (5th Cir. 1994) ("We are authorized to deviate from the literal language of a statute only if the plain language would lead to absurd results, or if such interpretation would defeat the intent of Congress.").

Furthermore, the words " any other action" indicate that Congress intended the phrase to include enforcement procedures that are different than, rather than similar to, those that are specifically enumerated. Indeed, the American Heritage Dictionary defines the word "other" to mean, inter alia: "Different from that or those implied or specified"; and "Of a different character or quality." The American Heritage Dictionary of the English Language 931 (1981).

In addition, The Chronicle has failed to point out to the Court any enforcement mechanisms that would be similar enough to those that are enumerated in § 1234c to satisfy the principles of ejusdem generis and noscitur a sociis.

[7] The Court notes that any such conditions must be unambiguously stated in order to bind a recipient of federal funding. See Pennhurst State Sch. and Hosp. v. Halderman, 451 U.S. 1, 17, 101 S. Ct. 1531, 67 L. Ed. 2d 694 (1981); United States v. Parish of St. Bernard, 756 F.2d 1116, 1121 (5th Cir.1985), cert. denied, 474 U.S. 1070, 106 S. Ct. 830, 88 L. Ed. 2d 801 (1986). However, contrary to the argument raised by The Chronicle, such conditions must be clearly stated by Congress in the applicable statute, not by the agency in the actual funding agreement. See Pennhurst, 451 U.S. at 17, 101 S. Ct. 1531 ("By insisting that Congress speak with a clear voice, we enable the States to exercise their choice knowingly, cognizant of the consequence of their participation.") (emphasis added). Therefore, as long as FERPA clearly states the requirements with which a fund recipient must comply, it is of no consequence whether the grant agreement explicitly restates those requirements or merely cites to FERPA. The Court believes that FERPA places clear and unambiguous obligations and restrictions on fund recipients, and thus, a "contract" between the United States and each Defendant was created. See Maynard v. Greater Hoyt Sch. Dist., 876 F. Supp. 1104, 1107 (D.S.D. 1995) (holding that FERPA establishes "mandatory and direct obligations regarding educational records on school districts that receive federal funds"); Belanger v. Nashua, New Hampshire, Sch. Dist., 856 F. Supp. 40, 46 (D.N.H.1994) ("The plain meaning of the language of FERPA sets forth what educational agencies or institutions must do and not do in order to be eligible for federal funds.").

[8] In response to the United States' claim that it has inherent authority to sue to enforce the terms of the grant agreement in this case, The Chronicle makes a rather disingenuous attempt to distinguish the case law relied upon by the United States and cited by the Court above. In particular, The Chronicle argues that the United States Court of Appeals for the Fifth Circuit, in United States v. Parish of St. Bernard, 756 F.2d 1116, 1121-23 (5th Cir. 1985), cert. denied, 474 U.S. 1070, 106 S. Ct. 830, 88 L. Ed. 2d 801 (1986), has limited its holding in Marion County. However, Parish of St. Bernard differs substantially from Marion County and does not appear to limit the proposition that a recipient of funds under a grant agreement is obligated to perform the conditions of the agreement, and that "the United States has an inherent right to sue for enforcement of the recipient's obligation in court." Marion County, 625 F.2d at 609.

In Parish of St. Bernard, 756 F.2d at 1121, the court found that there was no express contract between the federal government and the fund recipients setting forth conditions for the disbursement of funds under the National Flood Insurance Program. Hence, the United States did not have any basis for filing a suit in federal court to enforce the terms of the program. In Marion County, on the other hand, the court found a contract between the United States and the fund recipient, and held that the United States had standing to sue to enforce the conditions of that contract, namely compliance with Title VI. This factual distinction between the two cases indicates that Parish of St. Bernard does not limit the persuasive value of Marion County for purposes of the instant case.

[9] The Chronicle argues that these Program Participation Agreements lack the requisite guarantee of authenticity to be proper subject's for this Court's consideration. This argument is without merit. These documents are self-authenticating under Rule 902(1) of the Federal Rules of Evidence. First, the Seal of the United States Department of Education appears on the first page of both agreements. (Doc. 29 and Ex. 1 and 2 attached thereto). Second, both agreements were signed by an agent for the Secretary of the Department of Education, which is an agency of the United States (Id.); see also Fed.R.Evid. 902(1).

[10] The Chronicle argues that even if federal common law authorizes government suits to enforce the contractual conditions of federal grants, the United States, in this action, has failed to state a cause of action for breach of contract in its complaint, and thus, it cannot rely upon any contracts between Defendants and the Department as a basis for standing to file suit.

This argument is not well-taken. The Court finds that the United States pleaded sufficient facts in its Complaint to allow it to rely on a contract theory for purposes of asserting standing. In the Complaint, the United asserts that Defendants are recipients of federal funding, and thus, subject to the provisions of FERPA. (Compl.¶¶ 1, 7, 13). The actual agreements signed between the Department and Defendants do nothing more than formalize, in writing, the universities' duty to comply with FERPA.

In other words, federal law itself creates the basis for the contract and supplies the specific conditions of the contract. See, e.g., Pennhurst State Sch. and Hosp. v. Halderman, 451 U.S. 1, 17, 101 S. Ct. 1531, 67 L. Ed. 2d 694 (1981) (stating that "legislation enacted pursuant to the spending power is much in the nature of a contract: in return for federal funds, the States agree to comply with federally imposed conditions."). By suing to enforce FERPA, the United States is, in effect, suing to enforce its contracts with Defendants. Therefore, the cause of action stated in the complaint is broad enough to encompass a contract theory, and the Department can rely on its agreements with OSU and Miami to assert standing in this matter. See generally Fed.R.Civ.P. 8(a) (2) (stating that a pleading need contain only "a short and plain statement of the claim showing that the pleader is entitled to relief"); Conley v. Gibson, 355 U.S. 41, 48, 78 S. Ct. 99, 2 L. Ed. 2d 80 (1957) ("The Federal Rules reject the approach that pleading is a game of skill in which one misstep by counsel may be decisive to the outcome and accept the principle that the purpose of pleading is to facilitate a proper decision on the merits."); Bartholet v. Reishauer, 953 F.2d 1073, 1078 (7th Cir.1992) (stating that under Rule 8(a), "the complaint need not identify a legal theory, and specifying an incorrect theory is not fatal"); Rohler v. TRW, Inc., 576 F.2d 1260, 1264 (7th Cir.1978) ("[U]nder Rule 8(a) (2) it is not necessary that the plaintiff set forth the legal theory on which he relies if he sets forth sufficient factual allegations to state a claim showing that he is entitled to any relief which the court may grant."); Morgan v. Eichler, No. 98 C 789, 1999 WL 756064, at *3 (N.D.Ill. Sept. 9, 1999) (stating that "[a]lthough it is common to draft complaints with multiple counts, each of which specifies a single statute or legal rule, nothing in the Rules of Civil Procedure requires this[,]" and "[c]omplaints should be short and simple, giving the adversary notice while leaving the rest to further documents").

[11] The Chronicle refers to the following language from FERPA as support for its argument: " 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 permitting the release of "education records" or any personally identifiable information contained therein. 20 U.S.C. § 1232g(b) (1) and (2) (emphasis added).

[12] It should be noted that The Chronicle, as an alternative argument, asserts that the Department has not suffered an "injury in fact" sufficient to meet the first element of standing set forth in Lujan v. Defenders of Wildlife, 504 U.S. 555, 112 S. Ct. 2130, 119 L. Ed. 2d 351 (1992). It argues that the persons affected by the indiscriminate release of "education records" are the students or parents of students mentioned in the records being disclosed, not the Department of Education.

While it is true that the students whose names appear in the disciplinary records that are released are injured by such action, the Department and the United States also suffer an injury in fact. The Department and the United States have a direct interest in ensuring that the institutions that receive federal funds under FERPA comply with the contractual and statutory provisions that were made conditions of the disbursement of such funds. This interest is sufficient to satisfy the standard articulated in Lujan.

In addition, the fact that this lawsuit may benefit students and their parents does not mean that the United States lacks standing.

[T]he mere fact that a suit by the United States operates to confer a benefit on private citizens does not, in and of itself, place the action outside the scope of the jurisdictional statute. The government's interest need not be pecuniary or proprietary; it may decide to litigate simply in order to assure the proper implementation of one of the government's policies and programs, to prevent the violation of constitutional rights, or to protect its sovereign interest.

14 Charles A. Wright, Arthur R. Miller & Edward H. Cooper, Federal Practice and Procedure § 3651 (2d. ed.1985) (citations omitted).

[13] The Chronicle argues, in its Motion Requesting an Order of Procedure (Doc. 22), that there may be genuine issues of material fact, and thus, additional discovery is necessary before this matter is ripe for judgment. However, The Chronicle has done nothing more than make a general assertion that more discovery could lead to facts that may affect the outcome of the case. Moreover, Plaintiff and both original defendants agree that there are no material facts in dispute here, and that this matter is ripe for judgment. (Docs. 25 and 26). Therefore, the Court finds that all material facts necessary to bring the legal issues before the Court are present and undisputed. Additional discovery is not necessary.

[14] The fact that Plaintiff seeks, inter alia, equitable relief in the form of a permanent injunction does not restrict the use of summary judgment as a procedural mechanism in this case. See Continental Airlines, Inc. v. Intra Brokers, Inc., 24 F.3d 1099, 1102 (9th Cir.1994) ("There is nothing novel about a permanent injunction issued on summary judgment rather than after trial. Such a procedure comports with Federal Rule of Civil Procedure 56."); United States v. McGee, 714 F.2d 607, 613 (6th Cir.1983) (holding that an evidentiary hearing is not necessary before an injunction may be granted where no triable issues of fact are involved); see also 10A Charles A. Wright, Arthur R. Miller, Edward H. Cooper, Federal Practice and Procedure § 2731, at 97 (3d ed. 1998) ("[I]f there are no triable fact issues and the court believes equitable relief is warranted, it is fully empowered to grant it on a Rule 56 motion."). As stated above, no disputed factual issues are present in this case, and thus, an evidentiary hearing on the merits is not necessary.

[15] Moreover, there is no conflict between Ohio law and federal law that would affect the outcome of this case, and thus, The Chronicle's preemption arguments are misplaced. The Supremacy Clause is not implicated in the instant case. The Court is merely interpreting a federal law as it relates to the case or controversy before it. This Court's decision in no way limits or otherwise affects Ohio's Public Records Act, because that Act does not require disclosure of "[r]ecords the release of which is prohibited by ... federal law." Ohio Rev.Code § 149.43(A) (1) (q).

[16] The Department has defined "personally identifiable information" as follows:

"Personally identifiable information" includes, but is not limited to:

(a) The student's name;

(b) The name of the student's parent or other family member;

(c) The address of the student or student's family;

(d) A personal identifier, such as the student's social security number or student number;

(e) A list of personal characteristics that would make the student's identity easily traceable; or

(f) Other information that would make the student's identity easily traceable.

34 C.F.R. § 99.3.

[17] In making its argument that student disciplinary records are not "education records," The Chronicle relies, in part, on several state and lower federal court opinions that have interpreted FERPA's definition of "education records" to exclude disciplinary records and other similar types of student records. See, e.g., Bauer v. Kincaid, 759 F. Supp. 575 (W.D.Mo.1991); Kirwan v. Diamondback, 352 Md. 74, 721 A.2d 196 (1998); State ex. rel. The Miami Student v. Miami University, 79 Ohio St.3d 168, 680 N.E.2d 956 (1997); Red & Black Publishing v. Board of Regents, 262 Ga. 848, 427 S.E.2d 257 (1993). These cases all rely, at least in part, on the premise that school records are not "education records" for purposes of FERPA unless they contain academic or other educationally-related information. See Bauer, 759 F. Supp. at 591 Kirwan, 721 A.2d at 204; Miami University, 680 N.E.2d at 959; Red & Black Publishing, 427 S.E.2d at 261. With all due respect to these courts, this Court refuses to adopt such a narrow interpretation of FERPA's definition of "education records." None of the above-cited decisions provided any reasoning for their narrow interpretation of FERPA, and this Court fails to see how such a limited meaning of "education records" can be discerned from the plain language.

If Congress had left the term "education records" undefined, it is plausible that one might interpret its ordinary meaning to refer only to academic or other educationally-related information. However, Congress provided a very clear and broad definition of "education records" in the statute. Therefore, it is the plain language of Congress' definition that the Court must interpret, not the term itself. See Arnold v. United Parcel Service, 136 F.3d 854, 859 (1st Cir.1998) (stating that the court interprets a statutory term according to is ordinary or natural meaning only when Congress has failed to expressly define that term); In re Telxon Corp. Securities Litigation, 67 F. Supp. 2d 803, 811 (N.D.Ohio 1999) ("In determining the meaning of a term or word used in a statute, the Court must begin with the `usual [plain] and ordinary meaning' of that term or word, unless a special meaning is provided in the statute itself."). Proceeding from this legal perspective, it becomes clear that university records do not have to be related to academic matters to be "education records" under FERPA.

[18] Amici in Opposition to Plaintiff cite various statements by Senator James Buckley, FERPA's sponsor, regarding the scope of FERPA and the purposes that it was enacted to serve. Amici argue that these statements indicate Congress' intent to exclude disciplinary records from the coverage of FERPA. See 120 Cong.Rec. 36532 (Dec. 1, 1974) (Speech to Legislative Conference of the National Congress of Parents and Teachers); 121 Cong. Rec. 13990 (Nov. 19, 1974) (Questions About and Objections to the Buckley Amendment). Specifically, Amici state in their brief that "[i]n neither of these speeches ... did Senator Buckley mention any concern with the confidentiality of campus law enforcement or student disciplinary records." (Doc. 18, p. 21).

The fact that Senator Buckley did not specifically mention student disciplinary records as a type of record which FERPA intends to protect is of no consequence to the Court's analysis. At best, Senator Buckley's statements are ambiguous comments regarding some of the information that FERPA is intended to protect. These statements do not clearly and affirmatively indicate an intent to exclude disciplinary records from the definition of "education records," which would be necessary for the Court to disregard the otherwise plain language of the statue. As stated above, without a clear expression in the legislative history of congressional intent to exclude disciplinary records from FERPA, the Court is guided by the text of the statue. See United States v. Knox, 32 F.3d 733, 744 (3d Cir.1994) ("Only the most extraordinary showing of contrary congressional intent may justify altering the plain meaning of a statutory term."), cert. denied, 513 U.S. 1109, 115 S. Ct. 897, 130 L. Ed. 2d 782 (1995).

[19] The Court notes that this case does not command reference to agency interpretations of FERPA because the intent of Congress is clearly stated in the text of the statute. Therefore, the Court provides this analysis merely as additional support for its conclusion that student disciplinary records are "education records" as defined in FERPA.

[20] The Chronicle argues that even if student disciplinary records are "education records" under FERPA, Defendants may still release those records because FERPA's language does not prohibit the release of education records, but rather, it merely authorizes the withholding of funds from schools who do not comply with FERPA. The Court rejected this same argument when raised as an argument against jurisdiction; the Court's reasoning applies with equal force here.

[21] The Chronicle also apparently accepts the Department's interpretations and clarifications of FERPA's provisions, as it uses the Department's regulations in its argument. (Doc. 19, pp. 7-10).

[22] The Secretary of Education further elaborated on the distinction between "law enforcement records," and "disciplinary records," as follows:

The proposed regulations defined for the first time both "law enforcement unit" and "disciplinary action or proceeding." In contrast to law enforcement unit records, the Department has been legally constrained to treat the records of a disciplinary action or proceeding as "education records" under FERPA (20 U.S.C. § 1232g), that is, protected against non-consensual disclosure except in statutorily specified circumstances. ... The Secretary proposed the definition of "disciplinary action or proceeding" to help institutions distinguish disciplinary records from law enforcement unit records, which are excluded by statute from the definition of "education records" in the circumstances specified.

. . . . .

FERPA was amended by Congress to exempt from the definition of "education records" those records that are created by a law enforcement unit for a law enforcement purpose and maintained by that law enforcement unit, thus allowing education agencies and institutions to disclose these records publicly without obtaining prior written consent. If a law enforcement unit of an institution creates a record for law enforcement purposes and provides a copy of that record to a dean, principal, or other school official for use in a disciplinary proceeding, that copy is an "education record" subject to FERPA if it is maintained by the dean, principal, or other school official and not the law enforcement unit. The original document created and maintained by the law enforcement unit is not an "education record" and does not become an "education record" merely because it was shared with another component of the institution.

Rules and Regulations, Department of Education, 60 F.R. 3464-3466 (Jan. 17, 1995).

[23] In Houchins, Justices Marshall and Blackmun took no part in the consideration or decision of the case. Moreover, the case resulted in a plurality opinion; Justice Burger, joined by Justices White and Rehnquist, announced the judgment of the Court, and Justice Stewart wrote a separate opinion concurring in the judgment.

[24] The Court is providing these reasons merely as examples of the possible damaging effects public access could have on the university disciplinary process. On the other hand, one may be able raise arguments that more openness would improve the university disciplinary process. However, in this case, neither The Chronicle nor Defendants have presented any arguments to that effect.

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United States v. Miami University, 91 F. Supp. 2d 1132 (S.D. Ohio 2000)

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United States v. Miami University, 91 F. Supp. 2d 1132 (S.D. Ohio 2000) case opinion from the U.S. District Court for the Southern District of Ohio

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American School Counselor Association. (2022c). ASCA Ethical Standards for School Counselors. https://www.schoolcounselor.org/getmedia/44f30280-ffe8-4b41-9ad8-f15909c3d164/EthicalStandards.pdf

ASCA National Model. (n.d.). School counseling standards in practice. ASCA National Model, 1–3. https://schoolcounselor.org/getmedia/f2102f85-54ee-4135-a1e4-910187301213/SIP-Back-to-School.pdf

EDUCATION CODE CHAPTER 26. PARENTAL RIGHTS AND RESPONSIBILITIES. (n.d.-b). Retrieved May 7, 2025, from https://statutes.capitol.texas.gov/docs/ed/htm/ed.26.htm

FERPA | Protecting Student Privacy. (n.d.). Retrieved May 5, 2025, from https://studentprivacy.ed.gov/ferpa

Mercedes Independent School District. (2021). Acceptable Use Policy for Technology (AUP). In Mercedes Independent School District. Retrieved May 5, 2025, from https://core-docs.s3.amazonaws.com/documents/asset/uploaded_file/4007/MISD/3405779/Acceptable_Use_Policy.pdf

The School Counselor and Confidentiality - American School Counselor Association (ASCA). (2022). https://www.schoolcounselor.org/Standards-Positions/Position-Statements/ASCA-Position-Statements/The-School-Counselor-and-Confidentiality

What is an education record? | Protecting Student Privacy. (n.d.). Retrieved May 5, 2025, from

https://studentprivacy.ed.gov/faq/what-education-record

United States V. Miami University, 91 F. Supp. 2d 1132 (S.D. Ohio 2000). (n.d.). Justia Law. Retrieved May 6, 2025, from https://law.justia.com/cases/federal/district-courts/FSupp2/91/1132/2510828/

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As an aspiring school counselor and someone who currently works alongside school counselors, my daily practice is guided under the legal regulation of FERPA and the TEC, as well as the ethical frameworks of ASCA, specifically their fundamentals of confidentiality. These guides provide clear boundaries of right and wrong, the compliance of which ensures accountability and defensibility, even when outcomes are sometimes unfavorable. Respecting student confidentiality and autonomy, as mandated by FERPA the TEC offer essential guidance, aligning and reassuring the correct and procedural actions are being taken. Similarly, the ethical guidelines provided by ASCA do not necessarily form my personal ethical conduct, the reinforce rather than replace ethical obligations to students and stakeholders.

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Coinciding with the first risk management strategy, "Consistent and well communicated guidelines," providing proper training and awareness can ensure that all stakeholders are on the same page when it comes to the expectations of confidentiality. When everyone is on the same page, the risk of breaches in confidentiality can be reduced.

"Work to support student success through collaborations in the following ways: ■ Partner with families, educators, businesses and community organizations focused on topics such as online learning, adaptability and resiliency, and student wellness ■ Serve on school/district committees focused on student and community wellness ■ Present workshops for parents on topics such as how to support learning and how to encourage appropriate student behaviors online or in-person ■ Work with administrators, families and community members to organize immediate and follow-up interventions in response to a crisis" (ASCA National Model, n.d. "Collaboration.")

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Consistent and well communicated guidelines

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Consistent and well communicated guidelines

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District policies must be clear and across the board in order to avoid gray areas. These policies should include the district's stance on confidentiality and expectations as well as possible consequences for not adhering to said expectations. In addition, the district should include the federal and state laws that coincide with their own policies.

Under FERPA §99.7

"(a)(1) Each educational agency or institution shall annually notify parents of students currently in attendance, or eligible students currently in attendance, of their rights under the Act and this part.

(2) The notice must inform parents or eligible students that they have the right to—

(i) Inspect and review the student's education records;

(ii) Seek amendment of the student's education records that the parent or eligible student believes to be inaccurate, misleading, or otherwise in violation of the student's privacy rights;

(iii) Consent to disclosures of personally identifiable information contained in the student's education records, except to the extent that the Act and §99.31 authorize disclosure without consent; and

(iv) File with the Department a complaint under §§99.63 and 99.64 concerning alleged failures by the educational agency or institution to comply with the requirements of the Act and this part.

(3) The notice must include all of the following:

(i) The procedure for exercising the right to inspect and review education records.

(ii) The procedure for requesting amendment of records under §99.20.

(iii) If the educational agency or institution has a policy of disclosing education records under §99.31(a)(1), a specification of criteria for determining who constitutes a school official and what constitutes a legitimate educational interest.

(b) An educational agency or institution may provide this notice by any means that are reasonably likely to inform the parents or eligible students of their rights.

(1) An educational agency or institution shall effectively notify parents or eligible students who are disabled.

(2) An agency or institution of elementary or secondary education shall effectively notify parents who have a primary or home language other than English."

(FERPA | Protecting Student Privacy, n.d.)

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34 CFR PART 99-FAMILY EDUCATIONAL RIGHTS AND PRIVACY

Below are the regulations at 34 CFR Part 99 implementing section 444 of the General Education Provision Act (GEPA), which is commonly referred to as the Family Educational Rights and Privacy Act (FERPA), and Federal Register Notices of amendments to FERPA. They are presented here for your convenience.

The current regulations can also be found at the Electronic Code of Federal Regulations: Title 34, Part 99--Family Educational Rights and Privacy.

The current statutes can be found at 20 U.S.C. 1232g - Family educational and privacy rights

To learn more about FERPA, please refer to the General Guidance for Parents or Students.

Parents and eligible students who wish to file a complaint under FERPA may do so on the File a Complaint page.
The Federal Register Notices of amendments to FERPA regulations can be found here:
34 CFR PART 99-FAMILY EDUCATIONAL RIGHTS AND PRIVACY
Contents Subpart A-General§99.1 To which educational agencies or institutions do these regulations apply?
§99.2 What is the purpose of these regulations?
§99.3 What definitions apply to these regulations?
§99.4 What are the rights of parents?
§99.5 What are the rights of students?
§99.6 [Reserved]
§99.7 What must an educational agency or institution include in its annual notification?
§99.8 What provisions apply to records of a law enforcement unit? Subpart B-What Are the Rights of Inspection and Review of Education Records?§99.10 What rights exist for a parent or eligible student to inspect and review education records?
§99.11 May an educational agency or institution charge a fee for copies of education records?
§99.12 What limitations exist on the right to inspect and review records? Subpart C-What Are the Procedures for Amending Education Records?§99.20 How can a parent or eligible student request amendment of the student's education records?
§99.21 Under what conditions does a parent or eligible student have the right to a hearing?
§99.22 What minimum requirements exist for the conduct of a hearing? Subpart D-May an Educational Agency or Institution Disclose Personally Identifiable Information From Education Records?§99.30 Under what conditions is prior consent required to disclose information?
§99.31 Under what conditions is prior consent not required to disclose information?
§99.32 What recordkeeping requirements exist concerning requests and disclosures?
§99.33 What limitations apply to the redisclosure of information?
§99.34 What conditions apply to disclosure of information to other educational agencies or institutions?
§99.35 What conditions apply to disclosure of information for Federal or State program purposes?
§99.36 What conditions apply to disclosure of information in health and safety emergencies?
§99.37 What conditions apply to disclosing directory information?
§99.38 What conditions apply to disclosure of information as permitted by State statute adopted after November 19, 1974, concerning the juvenile justice system?
§99.39 What definitions apply to the nonconsensual disclosure of records by postsecondary educational institutions in connection with disciplinary proceedings concerning crimes of violence or non-forcible sex offenses? Subpart E-What Are the Enforcement Procedures?§99.60 What functions has the Secretary delegated to the Office and to the Office of Administrative Law Judges?
§99.61 What responsibility does an educational agency or institution, a recipient of Department funds, or a third party outside of an educational agency or institution have concerning conflict with State or local laws?
§99.62 What information must an educational agency or institution or other recipient of Department funds submit to the Office?
§99.63 Where are complaints filed?
§99.64 What is the investigation procedure?
§99.65 What is the content of the notice of investigation issued by the Office?
§99.66 What are the responsibilities of the Office in the enforcement process?
§99.67 How does the Secretary enforce decisions?
Appendix A to Part 99-Crimes of Violence Definitions
Subpart A-General

§99.1 To which educational agencies or institutions do these regulations apply?

(a) Except as otherwise noted in §99.10, this part applies to an educational agency or institution to which funds have been made available under any program administered by the Secretary, if-

(1) The educational institution provides educational services or instruction, or both, to students; or

(2) The educational agency is authorized to direct and control public elementary or secondary, or postsecondary educational institutions.

(b) This part does not apply to an educational agency or institution solely because students attending that agency or institution receive non-monetary benefits under a program referenced in paragraph (a) of this section, if no funds under that program are made available to the agency or institution.

(c) The Secretary considers funds to be made available to an educational agency or institution of funds under one or more of the programs referenced in paragraph (a) of this section-

(1) Are provided to the agency or institution by grant, cooperative agreement, contract, subgrant, or subcontract; or

(2) Are provided to students attending the agency or institution and the funds may be paid to the agency or institution by those students for educational purposes, such as under the Pell Grant Program and the Guaranteed Student Loan Program (titles IV-A-1 and IV-B, respectively, of the Higher Education Act of 1965, as amended).

(d) If an educational agency or institution receives funds under one or more of the programs covered by this section, the regulations in this part apply to the recipient as a whole, including each of its components (such as a department within a university).

(Authority: 20 U.S.C. 1232g)

[53 FR 11943, Apr. 11, 1988, as amended at 61 FR 59295, Nov. 21, 1996; 65 FR 41852, July 6, 2000]

§99.2 What is the purpose of these regulations?

The purpose of this part is to set out requirements for the protection of privacy of parents and students under section 444 of the General Education Provisions Act, as amended.

(Authority: 20 U.S.C. 1232g)

Note to §99.2: 34 CFR 300.610 through 300.626 contain requirements regarding the confidentiality of information relating to children with disabilities who receive evaluations, services or other benefits under Part B of the Individuals with Disabilities Education Act (IDEA). 34 CFR 303.402 and 303.460 identify the confidentiality of information requirements regarding children and infants and toddlers with disabilities and their families who receive evaluations, services, or other benefits under Part C of IDEA. 34 CFR 300.610 through 300.627 contain the confidentiality of information requirements that apply to personally identifiable data, information, and records collected or maintained pursuant to Part B of the IDEA.

[53 FR 11943, Apr. 11, 1988, as amended at 61 FR 59295, Nov. 21, 1996; 73 FR 74851, Dec. 9, 2008]

§99.3 What definitions apply to these regulations?

The following definitions apply to this part:

Act means the Family Educational Rights and Privacy Act of 1974, as amended, enacted as section 444 of the General Education Provisions Act.

(Authority: 20 U.S.C. 1232g)

Attendance includes, but is not limited to-

(a) Attendance in person or by paper correspondence, videoconference, satellite, Internet, or other electronic information and telecommunications technologies for students who are not physically present in the classroom; and

(b) The period during which a person is working under a work-study program.

(Authority: 20 U.S.C. 1232g)

Authorized representative means any entity or individual designated by a State or local educational authority or an agency headed by an official listed in §99.31(a)(3) to conduct-with respect to Federal- or State-supported education programs-any audit or evaluation, or any compliance or enforcement activity in connection with Federal legal requirements that relate to these programs.

(Authority: 20 U.S.C. 1232g(b)(1)(C), (b)(3), and (b)(5))

Biometric record, as used in the definition of personally identifiable information, means a record of one or more measurable biological or behavioral characteristics that can be used for automated recognition of an individual. Examples include fingerprints; retina and iris patterns; voiceprints; DNA sequence; facial characteristics; and handwriting.

(Authority: 20 U.S.C. 1232g)

Dates of attendance. (a) The term means the period of time during which a student attends or attended an educational agency or institution. Examples of dates of attendance include an academic year, a spring semester, or a first quarter.

(b) The term does not include specific daily records of a student's attendance at an educational agency or institution.

(Authority: 20 U.S.C. 1232g(a)(5)(A))

Directory information means information contained in an education record of a student that would not generally be considered harmful or an invasion of privacy if disclosed.

(a) Directory information includes, but is not limited to, the student's name; address; telephone listing; electronic mail address; photograph; date and place of birth; major field of study; grade level; enrollment status ( e.g., undergraduate or graduate, full-time or part-time); dates of attendance; participation in officially recognized activities and sports; weight and height of members of athletic teams; degrees, honors, and awards received; and the most recent educational agency or institution attended.

(b) Directory information does not include a student's-

(1) Social security number; or

(2) Student identification (ID) number, except as provided in paragraph (c) of this definition.

(c) In accordance with paragraphs (a) and (b) of this definition, directory information includes-

(1) A student ID number, user ID, or other unique personal identifier used by a student for purposes of accessing or communicating in electronic systems, but only if the identifier cannot be used to gain access to education records except when used in conjunction with one or more factors that authenticate the user's identity, such as a personal identification number (PIN), password or other factor known or possessed only by the authorized user; and

(2) A student ID number or other unique personal identifier that is displayed on a student ID badge, but only if the identifier cannot be used to gain access to education records except when used in conjunction with one or more factors that authenticate the user's identity, such as a PIN, password, or other factor known or possessed only by the authorized user.

(Authority: 20 U.S.C. 1232g(a)(5)(A))

Disciplinary action or proceeding means the investigation, adjudication, or imposition of sanctions by an educational agency or institution with respect to an infraction or violation of the internal rules of conduct applicable to students of the agency or institution.

Disclosure means to permit access to or the release, transfer, or other communication of personally identifiable information contained in education records by any means, including oral, written, or electronic means, to any party except the party identified as the party that provided or created the record.

(Authority: 20 U.S.C. 1232g(b)(1) and (b)(2))

Early childhood education program means-

(a) A Head Start program or an Early Head Start program carried out under the Head Start Act (42 U.S.C. 9831 et seq.), including a migrant or seasonal Head Start program, an Indian Head Start program, or a Head Start program or an Early Head Start program that also receives State funding;

(b) A State licensed or regulated child care program; or

(c) A program that-

(1) Serves children from birth through age six that addresses the children's cognitive (including language, early literacy, and early mathematics), social, emotional, and physical development; and

(2) Is-

(i) A State prekindergarten program;

(ii) A program authorized under section 619 or part C of the Individuals with Disabilities Education Act; or

(iii) A program operated by a local educational agency.

Educational agency or institution means any public or private agency or institution to which this part applies under §99.1(a).

(Authority: 20 U.S.C. 1232g(a)(3))

Education program means any program that is principally engaged in the provision of education, including, but not limited to, early childhood education, elementary and secondary education, postsecondary education, special education, job training, career and technical education, and adult education, and any program that is administered by an educational agency or institution.

(Authority: 20 U.S.C. 1232g(b)(3), (b)(5))

Education records. (a) The term means those records that are:

(1) Directly related to a student; and

(2) Maintained by an educational agency or institution or by a party acting for the agency or institution.

(b) The term does not include:

(1) Records that are kept in the sole possession of the maker, are used only as a personal memory aid, and are not accessible or revealed to any other person except a temporary substitute for the maker of the record.

(2) Records of the law enforcement unit of an educational agency or institution, subject to the provisions of §99.8.

(3)(i) Records relating to an individual who is employed by an educational agency or institution, that:

(A) Are made and maintained in the normal course of business;

(B) Relate exclusively to the individual in that individual's capacity as an employee; and

(C) Are not available for use for any other purpose.

(ii) Records relating to an individual in attendance at the agency or institution who is employed as a result of his or her status as a student are education records and not excepted under paragraph (b)(3)(i) of this definition.

(4) Records on a student who is 18 years of age or older, or is attending an institution of postsecondary education, that are:

(i) Made or maintained by a physician, psychiatrist, psychologist, or other recognized professional or paraprofessional acting in his or her professional capacity or assisting in a paraprofessional capacity;

(ii) Made, maintained, or used only in connection with treatment of the student; and

(iii) Disclosed only to individuals providing the treatment. For the purpose of this definition, "treatment" does not include remedial educational activities or activities that are part of the program of instruction at the agency or institution; and

(5) Records created or received by an educational agency or institution after an individual is no longer a student in attendance and that are not directly related to the individual's attendance as a student.

(6) Grades on peer-graded papers before they are collected and recorded by a teacher.

(Authority: 20 U.S.C. 1232g(a)(4))

Eligible student means a student who has reached 18 years of age or is attending an institution of postsecondary education.

(Authority: 20 U.S.C. 1232g(d))

Institution of postsecondary education means an institution that provides education to students beyond the secondary school level; "secondary school level" means the educational level (not beyond grade 12) at which secondary education is provided as determined under State law.

(Authority: 20 U.S.C. 1232g(d))

Parent means a parent of a student and includes a natural parent, a guardian, or an individual acting as a parent in the absence of a parent or a guardian.

(Authority: 20 U.S.C. 1232g)

Party means an individual, agency, institution, or organization.

(Authority: 20 U.S.C. 1232g(b)(4)(A))

Personally Identifiable Information

The term includes, but is not limited to-

(a) The student's name;

(b) The name of the student's parent or other family members;

(c) The address of the student or student's family;

(d) A personal identifier, such as the student's social security number, student number, or biometric record;

(e) Other indirect identifiers, such as the student's date of birth, place of birth, and mother's maiden name;

(f) Other information that, alone or in combination, is linked or linkable to a specific student that would allow a reasonable person in the school community, who does not have personal knowledge of the relevant circumstances, to identify the student with reasonable certainty; or

(g) Information requested by a person who the educational agency or institution reasonably believes knows the identity of the student to whom the education record relates.

(Authority: 20 U.S.C. 1232g)

Record means any information recorded in any way, including, but not limited to, handwriting, print, computer media, video or audio tape, film, microfilm, and microfiche.

(Authority: 20 U.S.C. 1232g)

Secretary means the Secretary of the U.S. Department of Education or an official or employee of the Department of Education acting for the Secretary under a delegation of authority.

(Authority: 20 U.S.C. 1232g)

Student, except as otherwise specifically provided in this part, means any individual who is or has been in attendance at an educational agency or institution and regarding whom the agency or institution maintains education records.

(Authority: 20 U.S.C. 1232g(a)(6))

[53 FR 11943, Apr. 11, 1988, as amended at 60 FR 3468, Jan. 17, 1995; 61 FR 59295, Nov. 21, 1996; 65 FR 41852, July 6, 2000; 73 FR 74851, Dec. 9, 2008; 76 FR 75641, Dec. 2, 2011]

§99.4 What are the rights of parents?

An educational agency or institution shall give full rights under the Act to either parent, unless the agency or institution has been provided with evidence that there is a court order, State statute, or legally binding document relating to such matters as divorce, separation, or custody that specifically revokes these rights.

(Authority: 20 U.S.C. 1232g)

§99.5 What are the rights of students?

(a)(1) When a student becomes an eligible student, the rights accorded to, and consent required of, parents under this part transfer from the parents to the student.

(2) Nothing in this section prevents an educational agency or institution from disclosing education records, or personally identifiable information from education records, to a parent without the prior written consent of an eligible student if the disclosure meets the conditions in §99.31(a)(8), §99.31(a)(10), §99.31(a)(15), or any other provision in §99.31(a).

(b) The Act and this part do not prevent educational agencies or institutions from giving students rights in addition to those given to parents.

(c) An individual who is or has been a student at an educational institution and who applies for admission at another component of that institution does not have rights under this part with respect to records maintained by that other component, including records maintained in connection with the student's application for admission, unless the student is accepted and attends that other component of the institution.

(Authority: 20 U.S.C. 1232g(d))

[53 FR 11943, Apr. 11, 1988, as amended at 58 FR 3188, Jan. 7, 1993; 65 FR 41853, July 6, 2000; 73 FR 74852, Dec. 9, 2008]

§99.6 [Reserved]

§99.7 What must an educational agency or institution include in its annual notification?

(a)(1) Each educational agency or institution shall annually notify parents of students currently in attendance, or eligible students currently in attendance, of their rights under the Act and this part.

(2) The notice must inform parents or eligible students that they have the right to-

(i) Inspect and review the student's education records;

(ii) Seek amendment of the student's education records that the parent or eligible student believes to be inaccurate, misleading, or otherwise in violation of the student's privacy rights;

(iii) Consent to disclosures of personally identifiable information contained in the student's education records, except to the extent that the Act and §99.31 authorize disclosure without consent; and

(iv) File with the Department a complaint under §§99.63 and 99.64 concerning alleged failures by the educational agency or institution to comply with the requirements of the Act and this part.

(3) The notice must include all of the following:

(i) The procedure for exercising the right to inspect and review education records.

(ii) The procedure for requesting amendment of records under §99.20.

(iii) If the educational agency or institution has a policy of disclosing education records under §99.31(a)(1), a specification of criteria for determining who constitutes a school official and what constitutes a legitimate educational interest.

(b) An educational agency or institution may provide this notice by any means that are reasonably likely to inform the parents or eligible students of their rights.

(1) An educational agency or institution shall effectively notify parents or eligible students who are disabled.

(2) An agency or institution of elementary or secondary education shall effectively notify parents who have a primary or home language other than English.

(Approved by the Office of Management and Budget under control number 1880-0508)

(Authority: 20 U.S.C. 1232g (e) and (f))

[61 FR 59295, Nov. 21, 1996]

§99.8 What provisions apply to records of a law enforcement unit?

(a)(1) Law enforcement unit means any individual, office, department, division, or other component of an educational agency or institution, such as a unit of commissioned police officers or non-commissioned security guards, that is officially authorized or designated by that agency or institution to-

(i) Enforce any local, State, or Federal law, or refer to appropriate authorities a matter for enforcement of any local, State, or Federal law against any individual or organization other than the agency or institution itself; or

(ii) Maintain the physical security and safety of the agency or institution.

(2) A component of an educational agency or institution does not lose its status as a law enforcement unit if it also performs other, non-law enforcement functions for the agency or institution, including investigation of incidents or conduct that constitutes or leads to a disciplinary action or proceedings against the student.

(b)(1) Records of a law enforcement unit means those records, files, documents, and other materials that are-

(i) Created by a law enforcement unit;

(ii) Created for a law enforcement purpose; and

(iii) Maintained by the law enforcement unit.

(2) Records of a law enforcement unit does not mean-

(i) Records created by a law enforcement unit for a law enforcement purpose that are maintained by a component of the educational agency or institution other than the law enforcement unit; or

(ii) Records created and maintained by a law enforcement unit exclusively for a non-law enforcement purpose, such as a disciplinary action or proceeding conducted by the educational agency or institution.

(c)(1) Nothing in the Act prohibits an educational agency or institution from contacting its law enforcement unit, orally or in writing, for the purpose of asking that unit to investigate a possible violation of, or to enforce, any local, State, or Federal law.

(2) Education records, and personally identifiable information contained in education records, do not lose their status as education records and remain subject to the Act, including the disclosure provisions of §99.30, while in the possession of the law enforcement unit.

(d) The Act neither requires nor prohibits the disclosure by an educational agency or institution of its law enforcement unit records.

(Authority: 20 U.S.C. 1232g(a)(4)(B)(ii))

[60 FR 3469, Jan. 17, 1995]

Subpart B-What Are the Rights of Inspection and Review of Education Records?

§99.10 What rights exist for a parent or eligible student to inspect and review education records?

(a) Except as limited under §99.12, a parent or eligible student must be given the opportunity to inspect and review the student's education records. This provision applies to-

(1) Any educational agency or institution; and

(2) Any State educational agency (SEA) and its components.

(i) For the purposes of subpart B of this part, an SEA and its components constitute an educational agency or institution.

(ii) An SEA and its components are subject to subpart B of this part if the SEA maintains education records on students who are or have been in attendance at any school of an educational agency or institution subject to the Act and this part.

(b) The educational agency or institution, or SEA or its component, shall comply with a request for access to records within a reasonable period of time, but not more than 45 days after it has received the request.

(c) The educational agency or institution, or SEA or its component shall respond to reasonable requests for explanations and interpretations of the records.

(d) If circumstances effectively prevent the parent or eligible student from exercising the right to inspect and review the student's education records, the educational agency or institution, or SEA or its component, shall-

(1) Provide the parent or eligible student with a copy of the records requested; or

(2) Make other arrangements for the parent or eligible student to inspect and review the requested records.

(e) The educational agency or institution, or SEA or its component shall not destroy any education records if there is an outstanding request to inspect and review the records under this section.

(f) While an education agency or institution is not required to give an eligible student access to treatment records under paragraph (b)(4) of the definition of Education records in §99.3, the student may have those records reviewed by a physician or other appropriate professional of the student's choice.

(Authority: 20 U.S.C. 1232g(a)(1) (A) and (B))

[53 FR 11943, Apr. 11, 1988, as amended at 61 FR 59296, Nov. 21, 1996]

§99.11 May an educational agency or institution charge a fee for copies of education records?

(a) Unless the imposition of a fee effectively prevents a parent or eligible student from exercising the right to inspect and review the student's education records, an educational agency or institution may charge a fee for a copy of an education record which is made for the parent or eligible student.

(b) An educational agency or institution may not charge a fee to search for or to retrieve the education records of a student.

(Authority: 20 U.S.C. 1232g(a)(1))

§99.12 What limitations exist on the right to inspect and review records?

(a) If the education records of a student contain information on more than one student, the parent or eligible student may inspect and review or be informed of only the specific information about that student.

(b) A postsecondary institution does not have to permit a student to inspect and review education records that are:

(1) Financial records, including any information those records contain, of his or her parents;

(2) Confidential letters and confidential statements of recommendation placed in the education records of the student before January 1, 1975, as long as the statements are used only for the purposes for which they were specifically intended; and

(3) Confidential letters and confidential statements of recommendation placed in the student's education records after January 1, 1975, if:

(i) The student has waived his or her right to inspect and review those letters and statements; and

(ii) Those letters and statements are related to the student's:

(A) Admission to an educational institution;

(B) Application for employment; or

(C) Receipt of an honor or honorary recognition.

(c)(1) A waiver under paragraph (b)(3)(i) of this section is valid only if:

(i) The educational agency or institution does not require the waiver as a condition for admission to or receipt of a service or benefit from the agency or institution; and

(ii) The waiver is made in writing and signed by the student, regardless of age.

(2) If a student has waived his or her rights under paragraph (b)(3)(i) of this section, the educational institution shall:

(i) Give the student, on request, the names of the individuals who provided the letters and statements of recommendation; and

(ii) Use the letters and statements of recommendation only for the purpose for which they were intended.

(3)(i) A waiver under paragraph (b)(3)(i) of this section may be revoked with respect to any actions occurring after the revocation.

(ii) A revocation under paragraph (c)(3)(i) of this section must be in writing.

(Authority: 20 U.S.C. 1232g(a)(1) (A), (B), (C), and (D))

[53 FR 11943, Apr. 11, 1988, as amended at 61 FR 59296, Nov. 21, 1996]

Subpart C-What Are the Procedures for Amending Education Records?

§99.20 How can a parent or eligible student request amendment of the student's education records?

(a) If a parent or eligible student believes the education records relating to the student contain information that is inaccurate, misleading, or in violation of the student's rights of privacy, he or she may ask the educational agency or institution to amend the record.

(b) The educational agency or institution shall decide whether to amend the record as requested within a reasonable time after the agency or institution receives the request.

(c) If the educational agency or institution decides not to amend the record as requested, it shall inform the parent or eligible student of its decision and of his or her right to a hearing under §99.21.

(Authority: 20 U.S.C. 1232g(a)(2))

[53 FR 11943, Apr. 11, 1988; 53 FR 19368, May 27, 1988, as amended at 61 FR 59296, Nov. 21, 1996]

§99.21 Under what conditions does a parent or eligible student have the right to a hearing?

(a) An educational agency or institution shall give a parent or eligible student, on request, an opportunity for a hearing to challenge the content of the student's education records on the grounds that the information contained in the education records is inaccurate, misleading, or in violation of the privacy rights of the student.

(b)(1) If, as a result of the hearing, the educational agency or institution decides that the information is inaccurate, misleading, or otherwise in violation of the privacy rights of the student, it shall:

(i) Amend the record accordingly; and

(ii) Inform the parent or eligible student of the amendment in writing.

(2) If, as a result of the hearing, the educational agency or institution decides that the information in the education record is not inaccurate, misleading, or otherwise in violation of the privacy rights of the student, it shall inform the parent or eligible student of the right to place a statement in the record commenting on the contested information in the record or stating why he or she disagrees with the decision of the agency or institution, or both.

(c) If an educational agency or institution places a statement in the education records of a student under paragraph (b)(2) of this section, the agency or institution shall:

(1) Maintain the statement with the contested part of the record for as long as the record is maintained; and

(2) Disclose the statement whenever it discloses the portion of the record to which the statement relates.

(Authority: 20 U.S.C. 1232g(a)(2))

[53 FR 11943, Apr. 11, 1988, as amended at 61 FR 59296, Nov. 21, 1996]

§99.22 What minimum requirements exist for the conduct of a hearing?

The hearing required by §99.21 must meet, at a minimum, the following requirements:

(a) The educational agency or institution shall hold the hearing within a reasonable time after it has received the request for the hearing from the parent or eligible student.

(b) The educational agency or institution shall give the parent or eligible student notice of the date, time, and place, reasonably in advance of the hearing.

(c) The hearing may be conducted by any individual, including an official of the educational agency or institution, who does not have a direct interest in the outcome of the hearing.

(d) The educational agency or institution shall give the parent or eligible student a full and fair opportunity to present evidence relevant to the issues raised under §99.21. The parent or eligible student may, at their own expense, be assisted or represented by one or more individuals of his or her own choice, including an attorney.

(e) The educational agency or institution shall make its decision in writing within a reasonable period of time after the hearing.

(f) The decision must be based solely on the evidence presented at the hearing, and must include a summary of the evidence and the reasons for the decision.

(Authority: 20 U.S.C. 1232g(a)(2))

Subpart D-May an Educational Agency or Institution Disclose Personally Identifiable Information From Education Records?

§99.30 Under what conditions is prior consent required to disclose information?

(a) The parent or eligible student shall provide a signed and dated written consent before an educational agency or institution discloses personally identifiable information from the student's education records, except as provided in §99.31.

(b) The written consent must:

(1) Specify the records that may be disclosed;

(2) State the purpose of the disclosure; and

(3) Identify the party or class of parties to whom the disclosure may be made.

(c) When a disclosure is made under paragraph (a) of this section:

(1) If a parent or eligible student so requests, the educational agency or institution shall provide him or her with a copy of the records disclosed; and

(2) If the parent of a student who is not an eligible student so requests, the agency or institution shall provide the student with a copy of the records disclosed.

(d) "Signed and dated written consent" under this part may include a record and signature in electronic form that-

(1) Identifies and authenticates a particular person as the source of the electronic consent; and

(2) Indicates such person's approval of the information contained in the electronic consent.

(Authority: 20 U.S.C. 1232g (b)(1) and (b)(2)(A))

[53 FR 11943, Apr. 11, 1988, as amended at 58 FR 3189, Jan. 7, 1993; 69 FR 21671, Apr. 21, 2004]

§99.31 Under what conditions is prior consent not required to disclose information?

(a) An educational agency or institution may disclose personally identifiable information from an education record of a student without the consent required by §99.30 if the disclosure meets one or more of the following conditions:

(1)(i)(A) The disclosure is to other school officials, including teachers, within the agency or institution whom the agency or institution has determined to have legitimate educational interests.

(B) A contractor, consultant, volunteer, or other party to whom an agency or institution has outsourced institutional services or functions may be considered a school official under this paragraph provided that the outside party-

( 1) Performs an institutional service or function for which the agency or institution would otherwise use employees;

( 2) Is under the direct control of the agency or institution with respect to the use and maintenance of education records; and

( 3) Is subject to the requirements of §99.33(a) governing the use and redisclosure of personally identifiable information from education records.

(ii) An educational agency or institution must use reasonable methods to ensure that school officials obtain access to only those education records in which they have legitimate educational interests. An educational agency or institution that does not use physical or technological access controls must ensure that its administrative policy for controlling access to education records is effective and that it remains in compliance with the legitimate educational interest requirement in paragraph (a)(1)(i)(A) of this section.

(2) The disclosure is, subject to the requirements of §99.34, to officials of another school, school system, or institution of postsecondary education where the student seeks or intends to enroll, or where the student is already enrolled so long as the disclosure is for purposes related to the student's enrollment or transfer.

Note: Section 4155(b) of the No Child Left Behind Act of 2001, 20 U.S.C. 7165(b), requires each State to assure the Secretary of Education that it has a procedure in place to facilitate the transfer of disciplinary records with respect to a suspension or expulsion of a student by a local educational agency to any private or public elementary or secondary school in which the student is subsequently enrolled or seeks, intends, or is instructed to enroll.

(3) The disclosure is, subject to the requirements of §99.35, to authorized representatives of-

(i) The Comptroller General of the United States;

(ii) The Attorney General of the United States;

(iii) The Secretary; or

(iv) State and local educational authorities.

(4)(i) The disclosure is in connection with financial aid for which the student has applied or which the student has received, if the information is necessary for such purposes as to:

(A) Determine eligibility for the aid;

(B) Determine the amount of the aid;

(C) Determine the conditions for the aid; or

(D) Enforce the terms and conditions of the aid.

(ii) As used in paragraph (a)(4)(i) of this section, financial aid means a payment of funds provided to an individual (or a payment in kind of tangible or intangible property to the individual) that is conditioned on the individual's attendance at an educational agency or institution.

(Authority: 20 U.S.C. 1232g(b)(1)(D))

(5)(i) The disclosure is to State and local officials or authorities to whom this information is specifically-

(A) Allowed to be reported or disclosed pursuant to State statute adopted before November 19, 1974, if the allowed reporting or disclosure concerns the juvenile justice system and the system's ability to effectively serve the student whose records are released; or

(B) Allowed to be reported or disclosed pursuant to State statute adopted after November 19, 1974, subject to the requirements of §99.38.

(ii) Paragraph (a)(5)(i) of this section does not prevent a State from further limiting the number or type of State or local officials to whom disclosures may be made under that paragraph.

(6)(i) The disclosure is to organizations conducting studies for, or on behalf of, educational agencies or institutions to:

(A) Develop, validate, or administer predictive tests;

(B) Administer student aid programs; or

(C) Improve instruction.

(ii) Nothing in the Act or this part prevents a State or local educational authority or agency headed by an official listed in paragraph (a)(3) of this section from entering into agreements with organizations conducting studies under paragraph (a)(6)(i) of this section and redisclosing personally identifiable information from education records on behalf of educational agencies and institutions that disclosed the information to the State or local educational authority or agency headed by an official listed in paragraph (a)(3) of this section in accordance with the requirements of §99.33(b).

(iii) An educational agency or institution may disclose personally identifiable information under paragraph (a)(6)(i) of this section, and a State or local educational authority or agency headed by an official listed in paragraph (a)(3) of this section may redisclose personally identifiable information under paragraph (a)(6)(i) and (a)(6)(ii) of this section, only if-

(A) The study is conducted in a manner that does not permit personal identification of parents and students by individuals other than representatives of the organization that have legitimate interests in the information;

(B) The information is destroyed when no longer needed for the purposes for which the study was conducted; and

(C) The educational agency or institution or the State or local educational authority or agency headed by an official listed in paragraph (a)(3) of this section enters into a written agreement with the organization that-

( 1) Specifies the purpose, scope, and duration of the study or studies and the information to be disclosed;

( 2) Requires the organization to use personally identifiable information from education records only to meet the purpose or purposes of the study as stated in the written agreement;

( 3) Requires the organization to conduct the study in a manner that does not permit personal identification of parents and students, as defined in this part, by anyone other than representatives of the organization with legitimate interests;

and

( 4) Requires the organization to destroy all personally identifiable information when the information is no longer needed for the purposes for which the study was conducted and specifies the time period in which the information must be destroyed.

(iv) An educational agency or institution or State or local educational authority or Federal agency headed by an official listed in paragraph (a)(3) of this section is not required to initiate a study or agree with or endorse the conclusions or results of the study.

(v) For the purposes of paragraph (a)(6) of this section, the term organization includes, but is not limited to, Federal, State, and local agencies, and independent organizations.

(7) The disclosure is to accrediting organizations to carry out their accrediting functions.

(8) The disclosure is to parents, as defined in §99.3, of a dependent student, as defined in section 152 of the Internal Revenue Code of 1986.

(9)(i) The disclosure is to comply with a judicial order or lawfully issued subpoena.

(ii) The educational agency or institution may disclose information under paragraph (a)(9)(i) of this section only if the agency or institution makes a reasonable effort to notify the parent or eligible student of the order or subpoena in advance of compliance, so that the parent or eligible student may seek protective action, unless the disclosure is in compliance with-

(A) A Federal grand jury subpoena and the court has ordered that the existence or the contents of the subpoena or the information furnished in response to the subpoena not be disclosed;

(B) Any other subpoena issued for a law enforcement purpose and the court or other issuing agency has ordered that the existence or the contents of the subpoena or the information furnished in response to the subpoena not be disclosed; or

(C) An ex parte court order obtained by the United States Attorney General (or designee not lower than an Assistant Attorney General) concerning investigations or prosecutions of an offense listed in 18 U.S.C. 2332b(g)(5)(B) or an act of domestic or international terrorism as defined in 18 U.S.C. 2331.

(iii)(A) If an educational agency or institution initiates legal action against a parent or student, the educational agency or institution may disclose to the court, without a court order or subpoena, the education records of the student that are relevant for the educational agency or institution to proceed with the legal action as plaintiff.

(B) If a parent or eligible student initiates legal action against an educational agency or institution, the educational agency or institution may disclose to the court, without a court order or subpoena, the student's education records that are relevant for the educational agency or institution to defend itself.

(10) The disclosure is in connection with a health or safety emergency, under the conditions described in §99.36.

(11) The disclosure is information the educational agency or institution has designated as "directory information", under the conditions described in §99.37.

(12) The disclosure is to the parent of a student who is not an eligible student or to the student.

(13) The disclosure, subject to the requirements in §99.39, is to a victim of an alleged perpetrator of a crime of violence or a non-forcible sex offense. The disclosure may only include the final results of the disciplinary proceeding conducted by the institution of postsecondary education with respect to that alleged crime or offense. The institution may disclose the final results of the disciplinary proceeding, regardless of whether the institution concluded a violation was committed.

(14)(i) The disclosure, subject to the requirements in §99.39, is in connection with a disciplinary proceeding at an institution of postsecondary education. The institution must not disclose the final results of the disciplinary proceeding unless it determines that-

(A) The student is an alleged perpetrator of a crime of violence or non-forcible sex offense; and

(B) With respect to the allegation made against him or her, the student has committed a violation of the institution's rules or policies.

(ii) The institution may not disclose the name of any other student, including a victim or witness, without the prior written consent of the other student.

(iii) This section applies only to disciplinary proceedings in which the final results were reached on or after October 7, 1998.

(15)(i) The disclosure is to a parent of a student at an institution of postsecondary education regarding the student's 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 if-

(A) The institution determines that the student has committed a disciplinary violation with respect to that use or possession; and

(B) The student is under the age of 21 at the time of the disclosure to the parent.

(ii) Paragraph (a)(15) of this section does not supersede any provision of State law that prohibits an institution of postsecondary education from disclosing information.

(16) The disclosure concerns sex offenders and other individuals required to register under section 170101 of the Violent Crime Control and Law Enforcement Act of 1994, 42 U.S.C. 14071, and the information was provided to the educational agency or institution under 42 U.S.C. 14071 and applicable Federal guidelines.

(b)(1) De-identified records and information. An educational agency or institution, or a party that has received education records or information from education records under this part, may release the records or information without the consent required by §99.30 after the removal of all personally identifiable information provided that the educational agency or institution or other party has made a reasonable determination that a student's identity is not personally identifiable, whether through single or multiple releases, and taking into account other reasonably available information.

(2) An educational agency or institution, or a party that has received education records or information from education records under this part, may release de-identified student level data from education records for the purpose of education research by attaching a code to each record that may allow the recipient to match information received from the same source, provided that-

(i) An educational agency or institution or other party that releases de-identified data under paragraph (b)(2) of this section does not disclose any information about how it generates and assigns a record code, or that would allow a recipient to identify a student based on a record code;

(ii) The record code is used for no purpose other than identifying a de-identified record for purposes of education research and cannot be used to ascertain personally identifiable information about a student; and

(iii) The record code is not based on a student's social security number or other personal information.

(c) An educational agency or institution must use reasonable methods to identify and authenticate the identity of parents, students, school officials, and any other parties to whom the agency or institution discloses personally identifiable information from education records.

(d) Paragraphs (a) and (b) of this section do not require an educational agency or institution or any other party to disclose education records or information from education records to any party except for parties under paragraph (a)(12) of this section.

(Authority: 20 U.S.C. 1232g(a)(5)(A), (b), (h), (i), and (j)).

[53 FR 11943, Apr. 11, 1988; 53 FR 19368, May 27, 1988, as amended at 58 FR 3189, Jan. 7, 1993; 61 FR 59296, Nov. 21, 1996; 65 FR 41853, July 6, 2000; 73 FR 74852, Dec. 9, 2008; 74 FR 401, Jan. 6, 2009; 76 FR 75641, Dec. 2, 2011]

§99.32 What recordkeeping requirements exist concerning requests and disclosures?

(a)(1) An educational agency or institution must maintain a record of each request for access to and each disclosure of personally identifiable information from the education records of each student, as well as the names of State and local educational authorities and Federal officials and agencies listed in §99.31(a)(3) that may make further disclosures of personally identifiable information from the student's education records without consent under §99.33(b).

(2) The agency or institution shall maintain the record with the education records of the student as long as the records are maintained.

(3) For each request or disclosure the record must include:

(i) The parties who have requested or received personally identifiable information from the education records; and

(ii) The legitimate interests the parties had in requesting or obtaining the information.

(4) An educational agency or institution must obtain a copy of the record of further disclosures maintained under paragraph (b)(2) of this section and make it available in response to a parent's or eligible student's request to review the record required under paragraph (a)(1) of this section.

(5) An educational agency or institution must record the following information when it discloses personally identifiable information from education records under the health or safety emergency exception in §99.31(a)(10) and §99.36:

(i) The articulable and significant threat to the health or safety of a student or other individuals that formed the basis for the disclosure; and

(ii) The parties to whom the agency or institution disclosed the information.

(b)(1) Except as provided in paragraph (b)(2) of this section, if an educational agency or institution discloses personally identifiable information from education records with the understanding authorized under §99.33(b), the record of the disclosure required under this section must include:

(i) The names of the additional parties to which the receiving party may disclose the information on behalf of the educational agency or institution; and

(ii) The legitimate interests under §99.31 which each of the additional parties has in requesting or obtaining the information.

(2)(i) A State or local educational authority or Federal official or agency listed in §99.31(a)(3) that makes further disclosures of information from education records under §99.33(b) must record the names of the additional parties to which it discloses information on behalf of an educational agency or institution and their legitimate interests in the information under §99.31 if the information was received from:

(A) An educational agency or institution that has not recorded the further disclosures under paragraph (b)(1) of this section; or

(B) Another State or local educational authority or Federal official or agency listed in §99.31(a)(3).

(ii) A State or local educational authority or Federal official or agency that records further disclosures of information under paragraph (b)(2)(i) of this section may maintain the record by the student's class, school, district, or other appropriate grouping rather than by the name of the student.

(iii) Upon request of an educational agency or institution, a State or local educational authority or Federal official or agency listed in §99.31(a)(3) that maintains a record of further disclosures under paragraph (b)(2)(i) of this section must provide a copy of the record of further disclosures to the educational agency or institution within a reasonable period of time not to exceed 30 days.

(c) The following parties may inspect the record relating to each student:

(1) The parent or eligible student.

(2) The school official or his or her assistants who are responsible for the custody of the records.

(3) Those parties authorized in §99.31(a) (1) and (3) for the purposes of auditing the recordkeeping procedures of the educational agency or institution.

(d) Paragraph (a) of this section does not apply if the request was from, or the disclosure was to:

(1) The parent or eligible student;

(2) A school official under §99.31(a)(1);

(3) A party with written consent from the parent or eligible student;

(4) A party seeking directory information; or

(5) A party seeking or receiving records in accordance with §99.31(a)(9)(ii)(A) through (C).

(Approved by the Office of Management and Budget under control number 1880-0508)

(Authority: 20 U.S.C. 1232g(b)(1) and (b)(4)(A))

[53 FR 11943, Apr. 11, 1988, as amended at 61 FR 59297, Nov. 21, 1996; 73 FR 74853, Dec. 9, 2008]

§99.33 What limitations apply to the redisclosure of information?

(a)(1) An educational agency or institution may disclose personally identifiable information from an education record only on the condition that the party to whom the information is disclosed will not disclose the information to any other party without the prior consent of the parent or eligible student.

(2) The officers, employees, and agents of a party that receives information under paragraph (a)(1) of this section may use the information, but only for the purposes for which the disclosure was made.

(b)(1) Paragraph (a) of this section does not prevent an educational agency or institution from disclosing personally identifiable information with the understanding that the party receiving the information may make further disclosures of the information on behalf of the educational agency or institution if-

(i) The disclosures meet the requirements of §99.31; and

(ii)(A) The educational agency or institution has complied with the requirements of §99.32(b); or

(B) A State or local educational authority or Federal official or agency listed in §99.31(a)(3) has complied with the requirements of §99.32(b)(2).

(2) A party that receives a court order or lawfully issued subpoena and rediscloses personally identifiable information from education records on behalf of an educational agency or institution in response to that order or subpoena under §99.31(a)(9) must provide the notification required under §99.31(a)(9)(ii).

(c) Paragraph (a) of this section does not apply to disclosures under §§99.31(a)(8), (9), (11), (12), (14), (15), and (16), and to information that postsecondary institutions are required to disclose under the Jeanne Clery Disclosure of Campus Security Policy and Campus Crime Statistics Act, 20 U.S.C. 1092(f) (Clery Act), to the accuser and accused regarding the outcome of any campus disciplinary proceeding brought alleging a sexual offense.

(d) An educational agency or institution must inform a party to whom disclosure is made of the requirements of paragraph (a) of this section except for disclosures made under §§99.31(a)(8), (9), (11), (12), (14), (15), and (16), and to information that postsecondary institutions are required to disclose under the Clery Act to the accuser and accused regarding the outcome of any campus disciplinary proceeding brought alleging a sexual offense.

(Authority: 20 U.S.C. 1232g(b)(4)(B))

[53 FR 11943, Apr. 11, 1988, as amended at 61 FR 59297, Nov. 21, 1996; 65 FR 41853, July 6, 2000; 73 FR 74853, Dec. 9, 2008; 76 FR 75642, Dec. 2, 2011]

§99.34 What conditions apply to disclosure of information to other educational agencies or institutions?

(a) An educational agency or institution that discloses an education record under §99.31(a)(2) shall:

(1) Make a reasonable attempt to notify the parent or eligible student at the last known address of the parent or eligible student, unless:

(i) The disclosure is initiated by the parent or eligible student; or

(ii) The annual notification of the agency or institution under §99.7 includes a notice that the agency or institution forwards education records to other agencies or institutions that have requested the records and in which the student seeks or intends to enroll or is already enrolled so long as the disclosure is for purposes related to the student's enrollment or transfer;

(2) Give the parent or eligible student, upon request, a copy of the record that was disclosed; and

(3) Give the parent or eligible student, upon request, an opportunity for a hearing under subpart C.

(b) An educational agency or institution may disclose an education record of a student in attendance to another educational agency or institution if:

(1) The student is enrolled in or receives services from the other agency or institution; and

(2) The disclosure meets the requirements of paragraph (a) of this section.

(Authority: 20 U.S.C. 1232g(b)(1)(B))

[53 FR 11943, Apr. 11, 1988, as amended at 61 FR 59297, Nov. 21, 1996; 73 FR 74854, Dec. 9, 2008]

§99.35 What conditions apply to disclosure of information for Federal or State program purposes?

(a)(1) Authorized representatives of the officials or agencies headed by officials listed in §99.31(a)(3) may have access to education records in connection with an audit or evaluation of Federal or State supported education programs, or for the enforcement of or compliance with Federal legal requirements that relate to those programs.

(2) The State or local educational authority or agency headed by an official listed in §99.31(a)(3) is responsible for using reasonable methods to ensure to the greatest extent practicable that any entity or individual designated as its authorized representative-

(i) Uses personally identifiable information only to carry out an audit or evaluation of Federal- or State-supported education programs, or for the enforcement of or compliance with Federal legal requirements related to these programs;

(ii) Protects the personally identifiable information from further disclosures or other uses, except as authorized in paragraph (b)(1) of this section; and

(iii) Destroys the personally identifiable information in accordance with the requirements of paragraphs (b) and (c) of this section.

(3) The State or local educational authority or agency headed by an official listed in §99.31(a)(3) must use a written agreement to designate any authorized representative, other than an employee. The written agreement must-

(i) Designate the individual or entity as an authorized representative;

(ii) Specify-

(A) The personally identifiable information from education records to be disclosed;

(B) That the purpose for which the personally identifiable information from education records is disclosed to the authorized representative is to carry out an audit or evaluation of Federal- or State-supported education programs, or to enforce or to comply with Federal legal requirements that relate to those programs; and

(C) A description of the activity with sufficient specificity to make clear that the work falls within the exception of §99.31(a)(3), including a description of how the personally identifiable information from education records will be used;

(iii) Require the authorized representative to destroy personally identifiable information from education records when the information is no longer needed for the purpose specified;

(iv) Specify the time period in which the information must be destroyed; and

(v) Establish policies and procedures, consistent with the Act and other Federal and State confidentiality and privacy provisions, to protect personally identifiable information from education records from further disclosure (except back to the disclosing entity) and unauthorized use, including limiting use of personally identifiable information from education records to only authorized representatives with legitimate interests in the audit or evaluation of a Federal- or State-supported education program or for compliance or enforcement of Federal legal requirements related to these programs.

(b) Information that is collected under paragraph (a) of this section must-

(1) Be protected in a manner that does not permit personal identification of individuals by anyone other than the State or local educational authority or agency headed by an official listed in §99.31(a)(3) and their authorized representatives, except that the State or local educational authority or agency headed by an official listed in §99.31(a)(3) may make further disclosures of personally identifiable information from education records on behalf of the educational agency or institution in accordance with the requirements of §99.33(b); and

(2) Be destroyed when no longer needed for the purposes listed in paragraph (a) of this section.

(c) Paragraph (b) of this section does not apply if:

(1) The parent or eligible student has given written consent for the disclosure under §99.30; or

(2) The collection of personally identifiable information is specifically authorized by Federal law.

(Authority: 20 U.S.C. 1232g(b)(1)(C), (b)(3), and (b)(5))

[53 FR 11943, Apr. 11, 1988, as amended at 73 FR 74854, Dec. 9, 2008; 76 FR 75642, Dec. 2, 2011]

§99.36 What conditions apply to disclosure of information in health and safety emergencies?

(a) An educational agency or institution may disclose personally identifiable information from an education record to appropriate parties, including parents of an eligible student, in connection with an emergency if knowledge of the information is necessary to protect the health or safety of the student or other individuals.

(b) Nothing in this Act or this part shall prevent an educational agency or institution from-

(1) Including in the education records of a student appropriate information concerning disciplinary action taken against the 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;

(2) Disclosing appropriate information maintained under paragraph (b)(1) of this section to teachers and school officials within the agency or institution who the agency or institution has determined have legitimate educational interests in the behavior of the student; or

(3) Disclosing appropriate information maintained under paragraph (b)(1) of this section to teachers and school officials in other schools who have been determined to have legitimate educational interests in the behavior of the student.

(c) In making a determination under paragraph (a) of this section, an educational agency or institution may take into account the totality of the circumstances pertaining to a threat to the health or safety of a student or other individuals. If the educational agency or institution determines that there is an articulable and significant threat to the health or safety of a student or other individuals, it may disclose information from education records to any person whose knowledge of the information is necessary to protect the health or safety of the student or other individuals. If, based on the information available at the time of the determination, there is a rational basis for the determination, the Department will not substitute its judgment for that of the educational agency or institution in evaluating the circumstances and making its determination.

(Authority: 20 U.S.C. 1232g (b)(1)(I) and (h))

[53 FR 11943, Apr. 11, 1988; 53 FR 19368, May 27, 1988, as amended at 61 FR 59297, Nov. 21, 1996; 73 FR 74854, Dec. 9, 2008]

§99.37 What conditions apply to disclosing directory information?

(a) An educational agency or institution may disclose directory information if it has given public notice to parents of students in attendance and eligible students in attendance at the agency or institution of:

(1) The types of personally identifiable information that the agency or institution has designated as directory information;

(2) A parent's or eligible student's right to refuse to let the agency or institution designate any or all of those types of information about the student as directory information; and

(3) The period of time within which a parent or eligible student has to notify the agency or institution in writing that he or she does not want any or all of those types of information about the student designated as directory information.

(b) An educational agency or institution may disclose directory information about former students without complying with the notice and opt out conditions in paragraph (a) of this section. However, the agency or institution must continue to honor any valid request to opt out of the disclosure of directory information made while a student was in attendance unless the student rescinds the opt out request.

(c) A parent or eligible student may not use the right under paragraph (a)(2) of this section to opt out of directory information disclosures to-

(1) Prevent an educational agency or institution from disclosing or requiring a student to disclose the student's name, identifier, or institutional email address in a class in which the student is enrolled; or

(2) Prevent an educational agency or institution from requiring a student to wear, to display publicly, or to disclose a student ID card or badge that exhibits information that may be designated as directory information under §99.3 and that has been properly designated by the educational agency or institution as directory information in the public notice provided under paragraph (a)(1) of this section.

(d) In its public notice to parents and eligible students in attendance at the agency or institution that is described in paragraph (a) of this section, an educational agency or institution may specify that disclosure of directory information will be limited to specific parties, for specific purposes, or both. When an educational agency or institution specifies that disclosure of directory information will be limited to specific parties, for specific purposes, or both, the educational agency or institution must limit its directory information disclosures to those specified in its public notice that is described in paragraph (a) of this section.

(e) An educational agency or institution may not disclose or confirm directory information without meeting the written consent requirements in §99.30 if a student's social security number or other non-directory information is used alone or combined with other data elements to identify or help identify the student or the student's records.

(Authority: 20 U.S.C. 1232g(a)(5) (A) and (B))

[53 FR 11943, Apr. 11, 1988, as amended at 73 FR 74854, Dec. 9, 2008; 76 FR 75642, Dec. 2, 2011]

§99.38 What conditions apply to disclosure of information as permitted by State statute adopted after November 19, 1974, concerning the juvenile justice system?

(a) If reporting or disclosure allowed by State statute concerns the juvenile justice system and the system's ability to effectively serve, prior to adjudication, the student whose records are released, an educational agency or institution may disclose education records under §99.31(a)(5)(i)(B).

(b) The officials and authorities to whom the records are disclosed shall 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.

(Authority: 20 U.S.C. 1232g(b)(1)(J))

[61 FR 59297, Nov. 21, 1996]

§99.39 What definitions apply to the nonconsensual disclosure of records by postsecondary educational institutions in connection with disciplinary proceedings concerning crimes of violence or non-forcible sex offenses?

As used in this part:

Alleged perpetrator of a crime of violence is a student who is alleged to have committed acts that would, if proven, constitute any of the following offenses or attempts to commit the following offenses that are defined in appendix A to this part:

Arson

Assault offenses

Burglary

Criminal homicide-manslaughter by negligence

Criminal homicide-murder and nonnegligent manslaughter

Destruction/damage/vandalism of property

Kidnapping/abduction

Robbery

Forcible sex offenses.

Alleged perpetrator of a nonforcible sex offense means a student who is alleged to have committed acts that, if proven, would constitute statutory rape or incest. These offenses are defined in appendix A to this part.

Final results means a decision or determination, made by an honor court or council, committee, commission, or other entity authorized to resolve disciplinary matters within the institution. The disclosure of final results must include only the name of the student, the violation committed, and any sanction imposed by the institution against the student.

Sanction imposed means a description of the disciplinary action taken by the institution, the date of its imposition, and its duration.

Violation committed means the institutional rules or code sections that were violated and any essential findings supporting the institution's conclusion that the violation was committed.

(Authority: 20 U.S.C. 1232g(b)(6))

[65 FR 41853, July 6, 2000]

Subpart E-What Are the Enforcement Procedures?

§99.60 What functions has the Secretary delegated to the Office and to the Office of Administrative Law Judges?

(a) For the purposes of this subpart, Office means the Office of the Chief Privacy Officer, U.S. Department of Education.

(b) The Secretary designates the Office to:

(1) Investigate, process, and review complaints and violations under the Act and this part; and

(2) Provide technical assistance to ensure compliance with the Act and this part.

(c) The Secretary designates the Office of Administrative Law Judges to act as the Review Board required under the Act to enforce the Act with respect to all applicable programs. The term applicable program is defined in section 400 of the General Education Provisions Act.

(Authority: 20 U.S.C. 1232g (f) and (g), 1234)

[53 FR 11943, Apr. 11, 1988, as amended at 58 FR 3189, Jan. 7, 1993; 82 FR 6253, Jan. 19, 2017]

§99.61 What responsibility does an educational agency or institution, a recipient of Department funds, or a third party outside of an educational agency or institution have concerning conflict with State or local laws?

If an educational agency or institution determines that it cannot comply with the Act or this part due to a conflict with State or local law, it must notify the Office within 45 days, giving the text and citation of the conflicting law. If another recipient of Department funds under any program administered by the Secretary or a third party to which personally identifiable information from education records has been non-consensually disclosed determines that it cannot comply with the Act or this part due to a conflict with State or local law, it also must notify the Office within 45 days, giving the text and citation of the conflicting law.

(Authority: 20 U.S.C. 1232g(f))

[76 FR 75642, Dec. 2, 2011]

§99.62 What information must an educational agency or institution or other recipient of Department funds submit to the Office?

The Office may require an educational agency or institution, other recipient of Department funds under any program administered by the Secretary to which personally identifiable information from education records is non-consensually disclosed, or any third party outside of an educational agency or institution to which personally identifiable information from education records is non-consensually disclosed to submit reports, information on policies and procedures, annual notifications, training materials, or other information necessary to carry out the Office's enforcement responsibilities under the Act or this part.

(Authority: 20 U.S.C. 1232g(b)(4)(B), (f), and (g))

[76 FR 75643, Dec. 2, 2011]

§99.63 Where are complaints filed?

A parent or eligible student may file a written complaint with the Office regarding an alleged violation under the Act and this part. The Office's address is: Family Policy Compliance Office, U.S. Department of Education, 400 Maryland Avenue, SW., Washington, DC 20202.

(Authority: 20 U.S.C. 1232g(g))

[65 FR 41854, July 6, 2000, as amended at 73 FR 74854, Dec. 9, 2008]

§99.64 What is the investigation procedure?

(a) A complaint must contain specific allegations of fact giving reasonable cause to believe that a violation of the Act or this part has occurred. A complaint does not have to allege that a violation is based on a policy or practice of the educational agency or institution, other recipient of Department funds under any program administered by the Secretary, or any third party outside of an educational agency or institution.

(b) The Office investigates a timely complaint filed by a parent or eligible student, or conducts its own investigation when no complaint has been filed or a complaint has been withdrawn, to determine whether an educational agency or institution or other recipient of Department funds under any program administered by the Secretary has failed to comply with a provision of the Act or this part. If the Office determines that an educational agency or institution or other recipient of Department funds under any program administered by the Secretary has failed to comply with a provision of the Act or this part, it may also determine whether the failure to comply is based on a policy or practice of the agency or institution or other recipient. The Office also investigates a timely complaint filed by a parent or eligible student, or conducts its own investigation when no complaint has been filed or a complaint has been withdrawn, to determine whether a third party outside of the educational agency or institution has failed to comply with the provisions of §99.31(a)(6)(iii)(B) or has improperly redisclosed personally identifiable information from education records in violation of §99.33.

(Authority: 20 U.S.C. 1232g(b)(4)(B), (f) and (g))

(c) A timely complaint is defined as an allegation of a violation of the Act that is submitted to the Office within 180 days of the date of the alleged violation or of the date that the complainant knew or reasonably should have known of the alleged violation.

(d) The Office may extend the time limit in this section for good cause shown.

(Authority: 20 U.S.C. 1232g(b)(4)(B), (f) and (g))

[53 FR 11943, Apr. 11, 1988, as amended at 58 FR 3189, Jan. 7, 1993; 65 FR 41854, July 6, 2000; 73 FR 74854, Dec. 9, 2008; 76 FR 75643, Dec. 2, 2011]

§99.65 What is the content of the notice of investigation issued by the Office?

(a) The Office notifies in writing the complainant, if any, and the educational agency or institution, the recipient of Department funds under any program administered by the Secretary, or the third party outside of an educational agency or institution if it initiates an investigation under §99.64(b). The written notice-

(1) Includes the substance of the allegations against the educational agency or institution, other recipient, or third party; and

(2) Directs the agency or institution, other recipient, or third party to submit a written response and other relevant information, as set forth in §99.62, within a specified period of time, including information about its policies and practices regarding education records.

(b) The Office notifies the complainant if it does not initiate an investigation because the complaint fails to meet the requirements of §99.64.

(Authority: 20 U.S.C. 1232g(g))

[73 FR 74855, Dec. 9, 2008, as amended at 76 FR 75643, Dec. 2, 2011]

§99.66 What are the responsibilities of the Office in the enforcement process?

(a) The Office reviews a complaint, if any, information submitted by the educational agency or institution, other recipient of Department funds under any program administered by the Secretary, or third party outside of an educational agency or institution, and any other relevant information. The Office may permit the parties to submit further written or oral arguments or information.

(b) Following its investigation, the Office provides to the complainant, if any, and the educational agency or institution, other recipient, or third party a written notice of its findings and the basis for its findings.

(c) If the Office finds that an educational agency or institution or other recipient has not complied with a provision of the Act or this part, it may also find that the failure to comply was based on a policy or practice of the agency or institution or other recipient. A notice of findings issued under paragraph (b) of this section to an educational agency or institution, or other recipient that has not complied with a provision of the Act or this part-

(1) Includes a statement of the specific steps that the agency or institution or other recipient must take to comply; and

(2) Provides a reasonable period of time, given all of the circumstances of the case, during which the educational agency or institution or other recipient may comply voluntarily.

(d) If the Office finds that a third party outside of an educational agency or institution has not complied with the provisions of §99.31(a)(6)(iii)(B) or has improperly redisclosed personally identifiable information from education records in violation of §99.33, the Office's notice of findings issued under paragraph (b) of this section-

(1) Includes a statement of the specific steps that the third party outside of the educational agency or institution must take to comply; and

(2) Provides a reasonable period of time, given all of the circumstances of the case, during which the third party may comply voluntarily.

(Authority: 20 U.S.C. 1232g(b)(4)(B), (f), and (g))

[76 FR 75643, Dec. 2, 2011]

§99.67 How does the Secretary enforce decisions?

(a) If an educational agency or institution or other recipient of Department funds under any program administered by the Secretary does not comply during the period of time set under §99.66(c), the Secretary may take any legally available enforcement action in accordance with the Act, including, but not limited to, the following enforcement actions available in accordance with part D of the General Education Provisions Act-

(1) Withhold further payments under any applicable program;

(2) Issue a complaint to compel compliance through a cease and desist order; or

(3) Terminate eligibility to receive funding under any applicable program.

(b) If, after an investigation under §99.66, the Secretary finds that an educational agency or institution, other recipient, or third party has complied voluntarily with the Act or this part, the Secretary provides the complainant and the agency or institution, other recipient, or third party with written notice of the decision and the basis for the decision.

(c) If the Office finds that a third party, outside the educational agency or institution, violates §99.31(a)(6)(iii)(B), then the educational agency or institution from which the personally identifiable information originated may not allow the third party found to be responsible for the violation of §99.31(a)(6)(iii)(B) access to personally identifiable information from education records for at least five years.

(d) If the Office finds that a State or local educational authority, a Federal agency headed by an official listed in §99.31(a)(3), or an authorized representative of a State or local educational authority or a Federal agency headed by an official listed in §99.31(a)(3), improperly rediscloses personally identifiable information from education records, then the educational agency or institution from which the personally identifiable information originated may not allow the third party found to be responsible for the improper redisclosure access to personally identifiable information from education records for at least five years.

(e) If the Office finds that a third party, outside the educational agency or institution, improperly rediscloses personally identifiable information from education records in violation of §99.33 or fails to provide the notification required under §99.33(b)(2), then the educational agency or institution from which the personally identifiable information originated may not allow the third party found to be responsible for the violation access to personally identifiable information from education records for at least five years.

(Authority: 20 U.S.C. 1232g(b)(4)(B) and (f); 20 U.S.C. 1234c)

[76 FR 75643, Dec. 2, 2011]

Appendix A to Part 99-Crimes of Violence Definitions

Arson

Any willful or malicious burning or attempt to burn, with or without intent to defraud, a dwelling house, public building, motor vehicle or aircraft, personal property of another, etc.

Assault Offenses

An unlawful attack by one person upon another.

Note: By definition there can be no "attempted" assaults, only "completed" assaults.

(a) Aggravated Assault. An unlawful attack by one person upon another for the purpose of inflicting severe or aggravated bodily injury. This type of assault usually is accompanied by the use of a weapon or by means likely to produce death or great bodily harm. (It is not necessary that injury result from an aggravated assault when a gun, knife, or other weapon is used which could and probably would result in serious injury if the crime were successfully completed.)

(b) Simple Assault. An unlawful physical attack by one person upon another where neither the offender displays a weapon, nor the victim suffers obvious severe or aggravated bodily injury involving apparent broken bones, loss of teeth, possible internal injury, severe laceration, or loss of consciousness.

(c) Intimidation. To unlawfully place another person in reasonable fear of bodily harm through the use of threatening words or other conduct, or both, but without displaying a weapon or subjecting the victim to actual physical attack.

Note: This offense includes stalking.

Burglary

The unlawful entry into a building or other structure with the intent to commit a felony or a theft.

Criminal Homicide-Manslaughter by Negligence

The killing of another person through gross negligence.

Criminal Homicide-Murder and Nonnegligent Manslaughter

The willful (nonnegligent) killing of one human being by another.

Destruction/Damage/Vandalism of Property

To willfully or maliciously destroy, damage, deface, or otherwise injure real or personal property without the consent of the owner or the person having custody or control of it.

Kidnapping/Abduction

The unlawful seizure, transportation, or detention of a person, or any combination of these actions, against his or her will, or of a minor without the consent of his or her custodial parent(s) or legal guardian.

Note: Kidnapping/Abduction includes hostage taking.

Robbery

The taking of, or attempting to take, anything of value under confrontational circumstances from the control, custody, or care of a person or persons by force or threat of force or violence or by putting the victim in fear.

Note: Carjackings are robbery offenses where a motor vehicle is taken through force or threat of force.

Sex Offenses, Forcible

Any sexual act directed against another person, forcibly or against that person's will, or both; or not forcibly or against the person's will where the victim is incapable of giving consent.

(a) Forcible Rape (Except "Statutory Rape"). The carnal knowledge of a person, forcibly or against that person's will, or both; or not forcibly or against the person's will where the victim is incapable of giving consent because of his or her temporary or permanent mental or physical incapacity (or because of his or her youth).

(b) Forcible Sodomy. Oral or anal sexual intercourse with another person, forcibly or against that person's will, or both; or not forcibly or against the person's will where the victim is incapable of giving consent because of his or her youth or because of his or her temporary or permanent mental or physical incapacity.

(c) Sexual Assault With An Object. To use an object or instrument to unlawfully penetrate, however slightly, the genital or anal opening of the body of another person, forcibly or against that person's will, or both; or not forcibly or against the person's will where the victim is incapable of giving consent because of his or her youth or because of his or her temporary or permanent mental or physical incapacity.

Note: An "object" or "instrument" is anything used by the offender other than the offender's genitalia. Examples are a finger, bottle, handgun, stick, etc.

(d) Forcible Fondling. The touching of the private body parts of another person for the purpose of sexual gratification, forcibly or against that person's will, or both; or not forcibly or against the person's will where the victim is incapable of giving consent because of his or her youth or because of his or her temporary or permanent mental or physical incapacity.

Note: Forcible Fondling includes "Indecent Liberties" and "Child Molesting."

Nonforcible Sex Offenses (Except "Prostitution Offenses")

Unlawful, nonforcible sexual intercourse.

(a) Incest. Nonforcible sexual intercourse between persons who are related to each other within the degrees wherein marriage is prohibited by law.

(b) Statutory Rape. Nonforcible sexual intercourse with a person who is under the statutory age of consent.

(Authority: 20 U.S.C. 1232g(b)(6) and 18 U.S.C. 16)

[65 FR 41854, July 6, 2000]

# data[].attributes.attachment_link.description
Below are the regulations at 34 CFR Part 99 implementing section 444 of the General Education Provision Act (GEPA), which is commonly referred to as the Family Educational Rights and Privacy Act (FERPA), and Federal Register Notices of amendments to FERPA. They are presented here for your convenience.

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When it comes to secure record keeping, the first thing that may come to mind is transcripts, test scores and other directly education-related information, this is true but not limited to those items. Protection of education records includes not posting

"Education records" are records that are directly related to a student and that are maintained by an educational agency or institution or a party acting for or on behalf of the agency or institution. These records include but are not limited to grades, transcripts, class lists, student course schedules, health records (at the K-12 level), student financial information (at the postsecondary level), and student discipline files. The information may be recorded in any way, including, but not limited to, handwriting, print, computer media, videotape, audiotape, film, microfilm, microfiche, and e-mail. (What Is an Education Record? | Protecting Student Privacy, n.d.)

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"Education records" are records that are directly related to a student and that are maintained by an educational agency or institution or a party acting for or on behalf of the agency or institution. These records include but are not limited to grades, transcripts, class lists, student course schedules, health records (at the K-12 level), student financial information (at the postsecondary level), and student discipline files. The information may be recorded in any way, including, but not limited to, handwriting, print, computer media, videotape, audiotape, film, microfilm, microfiche, and e-mail.

Source: 34 CFR § 99.2

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"Education records" are records that are directly related to a student and that are maintained by an educational agency or institution or a party acting for or on behalf of the agency or institution. These records include but are not limited to grades, transcripts, class lists, student course schedules, health records (at the K-12 level), student financial information (at the postsecondary level), and student discipline files.

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American School Counseling Association (ASCA) on confidentiality 

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American School Counseling Association (ASCA) on confidentiality 

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“f. Keep information confidential unless legal requirements demand confidential information be revealed or a breach is required to prevent serious and foreseeable harm to the student or others. Serious and foreseeable harm is different for each minor in schools and is determined by a student’s developmental and chronological age, the setting, parental/guardian rights and the nature of the harm. School counselors consult with appropriate professionals when in doubt as to the validity of an exception.” (American School Counselor Association. A.2 Confidentiality (f), 2022c )

In the case of a student expressing suicidal ideations, the duty to warn supersedes confidentiality. A counselor may need to break confidentiality in a situation like this.

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Mercedes ISD Acceptable Use Policy for Technology

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Mercedes ISD Acceptable Use Policy for Technology

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“Any of the following uses is deemed “unacceptable” and a violation of the Mercedes ISD Acceptable Use Policy for Technology. The final decision regarding whether any given use of the network or Internet is acceptable lies with the Superintendent or designee. Disciplinary action may be taken for unacceptable use of the network or Internet….

Posting personal information about yourself or others (such as addresses and phone numbers) other than as needed to conduct school operations

CONSEQUENCES FOR INAPPROPRIATE USE One or more of the following consequences may be imposed:

• Suspension of access to the system.

• Revocation of the computer system account

• Other action, including disciplinary action, in accordance with Board policy and/or the Student Code of Conduct (as applicable)” (Mercedes Independent School District, 2021)

This district’s policy regarding wrongfully sharing personal information such as addresses or phone numbers is outlined in their district technology policy in order to communicate that this is a punishable action.

Mercedes Independent School District. (2021). Acceptable Use Policy for Technology (AUP). In Mercedes Independent School District. https://core-docs.s3.amazonaws.com/documents/asset/uploaded_file/4007/MISD/3405779/Acceptable_Use_Policy.pdf

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Family Education Rights and Privacy (FERPA)

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Family Education Rights and Privacy (FERPA)

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The Office of the Federal Register publishes documents on behalf of Federal agencies but does not have any authority over their programs. We recommend you directly contact the agency responsible for the content in question.

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The Texas Education Agency, whom oversees primary and secondary education for both public and charter schools of Texas, regulates administrative laws via the Texas Education Code at the state level.

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Welcome to Texas Education Agency | Texas Education Agency

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The latest news from the Texas Education Agency is available through news releases, online correspondence, mailing lists, and other posted information.

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The Family Educational Rights and Privacy Act (FERPA), is a federal law that defines and protects the privacy of student education records. In addition FERPA, defines a "parent" with regard to a student, grants them access to records, and mandates that no records shall be released without their consent so long as their student is under the age of 18.

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Amendments

2013-Subsec. (b)(1)(L). Pub. L. 112-278, § 2(1), added subpar. (L).

Subsec. (b)(2)(B). Pub. L. 112-278, § 2(2), inserted ", except when a parent is a party to a court proceeding involving child abuse and neglect (as defined in section 3 of the Child Abuse Prevention and Treatment Act ( 42 U.S.C. 5101 note)) or dependency matters, and the order is issued in the context of that proceeding, additional notice to the parent by the educational agency or institution is not required" after "educational institution or agency".

2010-Subsec. (b)(1)(K). Pub. L. 111-296, which directed that par. (1) be amended by adding subpar. (K) "at the end", was executed by adding subpar. (K) after subpar. (J), to reflect the probable intent of Congress.

2002-Subsec. (a)(1)(B). Pub. L. 107-110, § 1062(3)(A), realigned margins.

Subsec. (b)(1). Pub. L. 107-110, § 1062(3)(C), substituted "subparagraph (E)" for "clause (E)" in concluding provisions.

Subsec. (b)(1)(J). Pub. L. 107-110, § 1062(3)(B), realigned margins.

Subsec. (b)(7). Pub. L. 107-110, § 1062(3)(D), realigned margins.

2001-Subsec. (j). Pub. L. 107-56 added subsec. (j).

2000-Subsec. (b)(7). Pub. L. 106-386 added par. (7).

1998-Subsec. (b)(1)(C). Pub. L. 105-244, § 951(1), amended subpar. (C) generally. Prior to amendment, subpar. (C) read as follows: "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) of this subsection;".

Subsec. (b)(6). Pub. L. 105-244, § 951(2), designated existing provisions as subpar. (A), substituted "or a nonforcible sex offense, the final results" for "the results", substituted "such crime or offense" for "such crime" in two places, and added subpars. (B) and (C).

Subsec. (i). Pub. L. 105-244, § 952, added subsec. (i).

1994-Subsec. (a)(1)(B). Pub. L. 103-382, § 249(1)(A)(ii), added subpar. (B). Former subpar. (B) redesignated (C).

Subsec. (a)(1)(C). Pub. L. 103-382, § 249(1)(A)(i), (iii), redesignated subpar. (B) as (C) and substituted "subparagraph (D)" for "subparagraph (C)" in cl. (iii). Former subpar. (C) redesignated (D).

Subsec. (a)(1)(D). Pub. L. 103-382, § 249(1)(A)(i), (iv), redesignated subpar. (C) as (D) and substituted "subparagraph (C)" for "subparagraph (B)".

Subsec. (a)(2). Pub. L. 103-382, § 249(1)(B), substituted "privacy rights" for "privacy or other rights".

Subsec. (a)(4)(B)(ii). Pub. L. 103-382, § 261(h)(1), substituted semicolon for period at end.

Subsec. (b)(1)(A). Pub. L. 103-382, § 249(2)(A)(i), inserted before semicolon ", including the educational interests of the child for whom consent would otherwise be required".

Subsec. (b)(1)(C). Pub. L. 103-382, § 261(h)(2)(A), substituted "or (iii)" for "(iii) an administrative head of an education agency (as defined in section 1221e-3(c) of this title), or (iv)".

Subsec. (b)(1)(E). Pub. L. 103-382, § 249(2)(A)(ii), amended subpar. (E) generally. Prior to amendment, subpar. (E) read as follows: "State and local officials or authorities to whom such information is specifically required to be reported or disclosed pursuant to State statute adopted prior to ;".

Subsec. (b)(1)(H). Pub. L. 103-382, § 261(h)(2)(B), substituted "the Internal Revenue Code of 1986" for "the Internal Revenue Code of 1954 ", which for purposes of codification was translated as "title 26" thus requiring no change in text.

Subsec. (b)(1)(J). Pub. L. 103-382, § 249(2)(A)(iii) -(v), added subpar. (J).

Subsec. (b)(2). Pub. L. 103-382, § 249(2)(B)(i), which directed amendment of matter preceding subpar. (A) by substituting ", unless-" for the period, was executed by substituting a comma for the period before "unless-" to reflect the probable intent of Congress.

Subsec. (b)(2)(B). Pub. L. 103-382, § 249(2)(B)(ii), inserted "except as provided in paragraph (1)(J)," before "such information".

Subsec. (b)(3). Pub. L. 103-382, § 261(h)(2)(C), substituted "or (C)" for "(C) an administrative head of an education agency or (D)" and "education programs" for "education program".

Subsec. (b)(4). Pub. L. 103-382, § 249(2)(C), inserted at end "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."

Subsec. (c). Pub. L. 103-382, § 249(3), substituted "Not later than 240 days after , the Secretary shall adopt appropriate regulations or procedures, or identify existing regulations or procedures, which" for "The Secretary shall adopt appropriate regulations to".

Subsec. (d). Pub. L. 103-382, § 261(h)(3), inserted a comma after "education".

Subsec. (e). Pub. L. 103-382, § 249(4), inserted "effectively" before "informs".

Subsec. (f). Pub. L. 103-382, § 261(h)(4), struck out ", or an administrative head of an education agency," after "The Secretary" and substituted "enforce this section" for "enforce provisions of this section", "in accordance with" for "according to the provisions of", and "comply with this section" for "comply with the provisions of this section".

Subsec. (g). Pub. L. 103-382, § 261(h)(5), struck out "of Health, Education, and Welfare" after "the Department" and "the provisions of" after "adjudicating violations of".

Subsec. (h). Pub. L. 103-382, § 249(5), added subsec. (h).

1992-Subsec. (a)(4)(B)(ii). Pub. L. 102-325 amended cl. (ii) generally. Prior to amendment, cl. (ii) read as follows: "if the personnel of a law enforcement unit do not have access to education records under subsection (b)(1) of this section, the records and documents of such law enforcement unit which (I) are kept apart from records described in subparagraph (A), (II) are maintained solely for law enforcement purposes, and (III) are not made available to persons other than law enforcement officials of the same jurisdiction;".

1990-Subsec. (b)(6). Pub. L. 101-542 added par. (6).

1979-Subsec. (b)(5). Pub. L. 96-46 added par. (5).

1974-Subsec. (a)(1). Pub. L. 93-568, § 2(a)(1)(A)-(C), (2)(A)-(C), (3), designated existing par. (1) as subpar. (A), substituted reference to educational agencies and institutions for reference to state or local educational agencies, institutions of higher education, community colleges, schools, agencies offering preschool programs, and other educational institutions, substituted the generic term education records for the enumeration of such records, and extended the right to inspect and review such records to parents of children who have been in attendance, and added subpars. (B) and (C).

Subsec. (a)(2). Pub. L. 93-568, § 2(a)(4), substituted provisions making the availability of funds to educational agencies and institutions conditional on the granting of an opportunity for a hearing to parents of students who are or have been in attendance at such institution or agency to challenge the contents of the student's education records for provisions granting the parents an opportunity for such hearing, and inserted provisions authorizing insertion into the records a written explanation of the parents respecting the content of such records.

Subsec. (a)(3) to (6). Pub. L. 93-568, § 2(a)(1)(G), (2)(F), (5), added pars. (3) to (6).

Subsec. (b)(1). Pub. L. 93-568, § 2(a)(1)(D), (2)(D), (6), (8)(A)-(C), (10)(A), in provisions preceding subpar. (A), substituted "educational agency or institution which has a policy 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))" for "state or local educational agency, any institution of higher education, any community college, any school, agency offering a preschool program, or any other educational institution which has a policy or practice of permitting the release of personally identifiable records or files (or personal information contained therein)", in subpar. (A), substituted "educational agency, who have been determined by such agency or institution to have" for "educational agency who have", in subpar. (B), substituted "the student seeks or intends to" for "the student intends to", in subpar. (C), substituted reference to "section 408(c)" for reference to "section 409 of this Act" which for purposes of codification has been translated as " section 1221e-3(c) of this title ", and added subpars. (E) to (I).

Subsec. (b)(2). Pub. L. 93-568, § 2(a)(1)(E), (2)(E), substituted "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" for "state or local educational agency, any institution of higher education, any community college, any school, agency offering a preschool program, or any other educational institution which has a policy or practice of furnishing, in any form, any personally identifiable information contained in personal school records, to any persons other than those listed in subsection (b)(1) of this section".

Subsec. (b)(3). Pub. L. 93-568, § 2(a)(8)(D), substituted "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" for "data is specifically authorized by Federal law, any data collected by such officials with respect to individual students shall not include information (including social security numbers) which would permit the personal identification of such students or their parents after the data so obtained has been collected".

Subsec. (b)(4). Pub. L. 93-568, § 2(a)(9), substituted provisions that each educational agency or institution maintain a record, kept with the education records of each student, indicating individuals, agencies, or organizations who obtained access to the student's record and the legitimate interest in obtaining such information, that such record of access shall be available only to parents, school officials, and their assistants having responsibility for the custody of such records, and as a means of auditing the operation of the system, for provisions that with respect to subsecs. (c)(1), (c)(2), and (c)(3) of this section, all persons, agencies, or organizations desiring access to the records of a student shall be required to sign forms to be kept with the records of the student, but only for inspection by the parents or the student, indicating specifically the legitimate educational or other interest of the person seeking such information, and that the form shall be available to parents and school officials having responsibility for record maintenance as a means of auditing the operation of the system.

Subsec. (e). Pub. L. 93-568, § 2(a)(1)(F), substituted "to any educational agency or institution unless such agency or institution" for "unless the recipient of such funds".

Subsec. (g). Pub. L. 93-568, § 2(a)(7), (10)(B), struck out reference to sections 1232c and 1232f of this title and inserted provisions that 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.

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20 U.S. Code § 1232g - Family educational and privacy rights

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Amendments 2013-Subsec. (b)(1)(L). Pub. L. 112-278, § 2(1), added subpar. (L). Subsec. (b)(2)(B). Pub. L. 112-278, § 2(2), inserted ", except when a parent is a party to a court proceeding involving child abuse and neglect (as defined in section 3 of the Child Abuse Prevention and Treatment Act ( 42 U.S.C.

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"Parental Rights and Responsibilities Parents are partners with educators, administrators, and school district boards of trustees in their children's education. Parents shall be encouraged to actively participate in creating and implementing educational programs for their children." (EDUCATION CODE CHAPTER 26. PARENTAL RIGHTS AND RESPONSIBILITIES, Sec. 26.001. (a). n.d.-b).

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EDUCATION CODE CHAPTER 26. PARENTAL RIGHTS AND RESPONSIBILITIES

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As outlines in TEC Chapter 26.001, the Texas Education Code expresses that they are to work in conjunction with parents, as educators are entrusted with their children on a daily basis. Protecting their privacy is crucial to the well being of all students.

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EDUCATION CODE CHAPTER 26. PARENTAL RIGHTS AND RESPONSIBILITIES

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The Department of Education is responsible for establishing federal policies, within the department of Education is the Student Privacy Policy Office, who is directly responsible for enforcing the Family Educational Rights and Policy Act (FERPA).

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Protecting Student Privacy | U.S. Department of Education

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Student Privacy for... Frequently Asked Questions

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Confidentiality as it pertains to School Counseling

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Confidentiality as it pertains to School Counseling

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“The relationship between students and their school counselor requires an atmosphere of trust and confidence.” (The School Counselor and Confidentiality - American School Counselor Association (ASCA), 2022). This concept of confidentiality when it comes to School Counseling is made to protect students from themselves and others, this extends to school staff, parents, and law enforcement in some cases. FERPA, upheld by the Department of Education in addition to the administrative laws upheld by the Texas Education Agency via Texas Education Code, provide the framework for security of the privacy of all students.

Audience

School Counselors

Primary and Secondary educators and administration

Parents and Students

Postsecondary School Officials

Board members

District technology staff