Federal Law Gives Your Student the Right to His or Her Student File
Be aware of both your rights and their limitations under the Family Educational Rights and Privacy Act (FERPA). If you are familiar with FERPA in the context of grade school and high school, things change in college. Parental rights under FERPA terminate when the student becomes a legal adult at 18.
FERPA protects students’ privacy, similar to HIPAA in the medical context. It also grants the student a legal right to his or her educational file. The student therefore has two rights: the right to keep personally identifying information confidential and the right to get his or her own records from the university.
When a student becomes the subject of a misconduct investigation, FERPA’s guarantee of student’s access to educational records can be crucial.
The definition of “educational records” under FERPA is broad. It is not limited to things like grades, tests, and transcripts. The law includes just about any information directly related to a student and maintained by the school or by a person, such as faculty or administrators, acting for the school. This includes disciplinary records. The federal courts have stated very clearly that “student disciplinary records are education records because they directly relate to a student and are kept by that student’s university.”
The university cannot withhold disciplinary records relating to your student, and this information will almost always be critical to making your case.
Can Parents Access their Student’s Educational Records at the University?
Parents generally need a waiver signed by the student to get this information. Schools often have their own waiver forms online. It is common for schools to insist that parents use their own specific forms. If you need FERPA information, it is usually best to ask what waiver form the school requires.
One thing is certain: you, as the parent, will not receive direct notification from the school that your son or daughter is involved in a Title IX proceeding. Universities and colleges understandably wish to protect the confidentiality of all students involved in student misconduct or Title IX investigations. Your best source of information, and sometimes the only one, will be the student.
FERPA allows a school to inform a parent of the outcome of a Title IX or other student misconduct investigation, but it is not required to do so. If the student does not inform you, a surprise revelation of the outcome may be the first thing you learn.
Because all sexual misconduct charges involve other individuals on campus, the FERPA rights of other individuals are also in play.
Universities are therefore afraid of violating FERPA by inadvertently disclosing confidential information. They sometimes strictly control the release of FERPA information. For example, universities are not required to provide copies of these records but may require that the student view such records on location and only at specific times.
Seeking to copy records, even if only for the defense of a student misconduct or Title IX violation, can even lead to additional “knock-on” charges and sanctions.
What if the Student Is Investigated by Law Enforcement?
Many colleges and universities maintain security forces, sometimes fully vested with authority to make arrests. So long as such a law enforcement office is doing police work, this information is not subject to FERPA.
However, law enforcement frequently turns over documents like police reports to campus administrators. Especially in small towns, municipal police often form close relationships to the college administration. Schools will get police reports, even where the police have stopped their investigation, and then start a Title IX investigation for sexual misconduct or investigate other conduct code violations, depending on the information they get from the police.
The police records turned over to the university, however, become part of the student’s educational records. You can demand them under FERPA. It does not matter whether they came from campus cops, from state troopers, from the municipal police, or from the FBI.
What if the University Withholds Records?
The vast majority of universities want to comply with FERPA. In misconduct proceedings, however, especially those that involve multiple students, universities often feel caught between a rock and a hard place. They have an obligation to respond to student requests for information but also the obligation to protect the privacy of other students.
This can lead to situations in which a student has the right to information, but the university refuses or restricts access. Some students demand records to defend themselves. Students who file misconduct charges sometimes also wish to get access to their student records.
Theoretically, you can engage an experienced Title IX attorney or student rights attorney to sue the university to force it to hand over records. This is a long and costly process and might result in getting access to the records but only long after you really need them.
The federal courts will not award money damages to punish the university for withholding student records. Similarly, if the university violates your FERPA rights by disclosing your information, the courts will not make the university pay.
The Family Policy Compliance Office (FPCO) of the US Department of Education is responsible for enforcing FERPA. A student can always submit a complaint to the FPCO if his or her FERPA rights are violated. This office typically moves very slowly, but it costs much less in time and resources to submit an FPCO complaint than it would cost to sue a university in federal court.
Be sure to read the university’s policies concerning disclosure and privacy of student records. If the university violates its own policies, and the student suffers tangible harm (such as lost job opportunities, reputational harm, etc.), the student may have a viable breach of contract claim or negligence claim, which can be enforced in court.
Although a court will not award money damages for a violation of FERPA, it can and will order the school to pay you compensation for breach of contract or negligence. An experienced Title IX attorney can advise you whether or not you have a viable claim.
