9 Steps to Privacy: The Right to Seek to Amend under FERPA
This blog is the second in a series about how schools can practically apply FERPA. Read the first blog on FERPA’s right to inspect and review here.
The Family Educational Rights and Privacy Act (FERPA) grants parents and eligible students* the right to seek to amend student records that are inaccurate, misleading, or otherwise violate student privacy. This does not mean that schools must change a record whenever a parent requests it. It means that schools must follow a fair process by doing the following:
- Respond to requests to amend within a reasonable time.
- If denying the request, schools must notify the parents of their right to a hearing.
- If, after the hearing, a school decides not to amend the records, the school must allow the parents to insert into the record a statement explaining their views. Schools must keep this statement with the record for as long as they maintain the record.
Schools can do many things before, during, and after the amendment process to ensure full compliance with FERPA. The following nine items will help schools comply with the law and treat parents fairly when they request a record amendment.
1. Know which information can be amended. FERPA limits parents’ right to seek to amend a record by allowing them to challenge only information that is inaccurate, misleading, or otherwise violates a student’s privacy. Congress never intended the process to extend to overturning substantive decisions that schools have always made, such as grades and placements. Examples of information that could be amended under FERPA include
- Substantive decisions that are inaccurately recorded (a student received a B+ on an exam, but the teacher incorrectly entered it into the student information system, lowering the student’s GPA in the process). However, parents bear the burden of providing compelling evidence to show that the decision is inaccurate;
- Attendance information (a student was marked absent when, in fact, they were present);
- Noncustodial parent contact information (such as when a court order explicitly states that a parent should no longer have access to the student’s records);
- Unnecessary or derogatory opinions that are not substantive decisions (such as using a racial or ethnic slur to describe a student); or
- Items that a student shared with a school official in confidence that could violate their privacy if shared with others. For example, if a student discussed their sexuality with a teacher and the teacher then made a note of it in the student information system, that could violate the student’s privacy (but the Department of Education has never ruled on what types of sharing would constitute a violation of a student’s privacy under FERPA).
This list is not exhaustive but indicates the kinds of requests that FERPA could cover. Note that just because substantive decisions cannot be amended under FERPA, schools may still choose to fulfill a parent’s request (e.g., a school could expunge a behavioral record if the school believed it was no longer relevant).
2. Remember that schools do not have to actually amend anything. Parents and eligible students have the right to seek to amend records. This means they have the right to a process, but that process does not have to result in actually changing the record. For example, in 2010, a parent wrote to the US Department of Education alleging that their child’s school had violated FERPA by refusing to change a student’s name in their education record to match the student’s birth certificate. After investigating, the Department of Education found that the school had followed all the steps that FERPA required, and therefore they had complied even though they chose not to amend a factually inaccurate record.
3. Respond to amendment requests in a reasonable time. FERPA does not give schools a specific time limit for responding to amendment requests; the only requirement is that schools’ response time be reasonable. If in doubt, schools can use the time period of 45 days required in FERPA’s regulations on the right to inspect and review records. If a parent complains and the US Department of Education initiates an investigation, one of the first things the department will likely examine are the dates of communication between the school and the parent. Also, remember that some state student privacy laws may have specific time limits, so check those obligations.
4. Make sure that the procedure for seeking amendment is clear. Schools must annually provide a notice explaining how parents can seek an amendment. Make sure the notice is clear; for example, include whom the parent should contact and the information parents should include in their request. The Model Notification of Rights for Elementary and Secondary Schools provides language that meets these requirements.
5. Proactively inform parents of their right to a hearing. If schools deny a request for amendment, they should proactively inform parents of their right to a hearing and how to exercise that right. To do so, schools can adapt FERPA’s language to provide notice. One example of this is as follows:
If you still believe that the information in the record is inaccurate, misleading, or otherwise in violation of your student’s privacy, you have the right to a hearing to further contest this decision following the procedures in 34 CFR § 99.22. This hearing will be conducted by an individual, including an official of [insert LEA name here], who does not have a direct interest in the outcome of this hearing. You may, at your own expense, be assisted or represented by one or more individuals of your choice, including an attorney. [insert LEA name here] will notify you in writing of the final decision within a reasonable period of time after the hearing, which will include a summary of the evidence and the reasons for the decision.
If you want to have a hearing to demonstrate that the information in the record is inaccurate, misleading, or otherwise in violation of your student’s privacy, please contact [insert name of individual to be notified at the LEA].
6. Stay on topic. During a hearing, parents may want to discuss other, unrelated concerns. Schools may choose to address these additional issues, but FERPA does not require it. FERPA specifies that schools’ decisions about whether to amend the record should derive solely from the evidence presented in the hearing (see 34 CFR § 99.22(f)). Therefore, at the hearing, schools should strive to discuss only evidence regarding whether the record in question is inaccurate, misleading, or otherwise violates the student’s privacy.
7. Include all of the required information in the decision. At the end of a hearing, the school will present its decision to the parent, and the decision needs to include a summary of the evidence and the reasons for the decision. Simply saying, “We find against you” is insufficient. Remember, FERPA is all about fair practices and transparency, so schools should take the time to write a clear summary and explanation.
8. Keep the parent’s statement with the original record. If, after following the process, the school decides not to amend the record, the parent has the right to place a statement with the record explaining why they think the record is problematic. Schools must keep this statement with the record for as long as they maintain the record. Even though schools likely keep students’ education records in multiple locations and in various media, schools cannot store the parent’s statement separately from the contested record: the purpose of storing the statement is so that anyone who views the record will easily see the parent’s statement. If it is kept in a separate, general area, it may be overlooked.
9. Maintain a paper trail. Even if the school does everything right, the parent may still file a complaint with the US Department of Education, and the school will have to demonstrate that it followed fair processes. Schools should be sure to maintain a record of every communication and decision so they can easily show compliance.
Schools may choose to comply with a parent’s request to delete or amend no-longer-relevant information without going through the above-described process (but this is subject to the schools’ state or district record-retention policies). For example, if a record notes that a student in second grade had anger issues, the school could choose to delete that information when it is no longer relevant.
Finally, remember that seeking to amend a record will likely be one of the most stressful interactions a parent will have with a school. FERPA was designed to ensure that parents and eligible students are treated fairly regarding their records while also allowing schools a reasonable amount of time to respond. If a particularly complicated or sensitive amendment request comes in, don’t panic. Review the school’s obligations and follow them. If the interactions with the parent become particularly stressful, remember that schools and parents have the same goal: doing what is best for students.
*To simplify the language, we refer to the parent throughout this post, but all of these rights also apply to eligible students, which includes students who have reached 18 years of age or who attend a postsecondary education institution.
David Sallay is the Student Data Privacy Auditor for the Utah State Board of Education and a contractor with FPF. Amelia Vance is the Director of Education Privacy at FPF.