Exhibit 5-1

Protecting the Privacy of Student Records Exhibit 5-1 Rights of Non-Custodial Parents in the Family Educational Rights and Privacy Act of 1974¹

The Family Educational Rights and Privacy Act (FERPA) sets out requirements designed to protect the privacy of parents and students. In brief, the law requires a school district to: 1) provide a parent access to the records that are directly related to the student; 2) provide a parent an opportunity to seek correction of the record he or she believes to be inaccurate or misleading; and 3) with some exceptions, obtain the written permission of a parent before disclosing information contained in the student's education record.

The definition of parent is found in the FERPA implementing regulation under 34 CFR 99.3.

"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.

Section 99.4 gives an example of 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.

This means that, in the case of divorce or separation, a school district must provide access to both natural parents, custodial and non-custodial, unless there is a legally binding document that specifically removes that parent's FERPA rights. In this context, a legally binding document is a court order or other legal paper that prohibits access to education record, or removes the parent's rights to have knowledge about his or her child's education.

Custody or other residential arrangements for a child do not, by themselves, affect the FERPA rights of the child's parents. One can best understand the FERPA position on parents' rights by separating the concept of custody from the concept of rights that FERPA gives parents. Custody, as a legal concept, establishes where a child will live, and often, the duties of the person(s) with whom the child lives. The FERPA, on the other hand, simply establishes the parents' right of access to and control of education record related to the child.

Here are the answers to questions frequently asked about the rights of non-custodial parents.

1. Does the FERPA require a school to keep a parent informed of the child's progress even though the parent is divorced and living some distance from the child?

No. The FERPA does not require schools to inform parents of student progress whetherthe parents are divorced or not.

2. Does the FERPA require a school to provide a parent copies of the record?

Generally, a school is not required to provide parents copies of the record. However, if the distance is great enough to make it impractical for the parent to visit the school to review the record, the school must make copies of the record and send them to the parent when that parent requests access to the record.

3. May a school charge for copies of records?

Yes. A school may charge a reasonable fee for copying.

4. Does the non-custodial parent have the right to be informed of and to attend teacher conferences?

The FERPA does not address conferences for the purpose of discussing student performance. Thus, a school has no obligation under this law to arrange a conference to accommodate the non-custodial parent. However, if records of conferences are maintained, the non-custodial parent has the right to see those records.

5. Must the school notify the non-custodial parent of his/her FERPA rights?

No. The school would be considered in compliance with the law if it notifies only the parent who has custody of the child.

6. Must the school provide the non-custodial parent the same general notices it provides the custodial parent?

No. General notices, lunch menus, PTA information, announcement of teacher conferences, school pictures, and other similar information, are not "education records" as defined by the FERPA. Therefore, schools are not legally required to provide them.

7. Is the school required to honor a parent's "standing request" for access or copies?

No. The FERPA does not require a school to honor a standing request, but the school may do so if it wishes. If parents wish to obtain information from their child's record on a regular basis, they should submit requests periodically. The school must respond to each request within 45 days.

8. How can a non-custodial parent get access to record?

Any parent may ask the school for the opportunity to review the record, either by going to where the record are kept or by requesting copies. The school may ask the parent for some identification.

9. Can the parent with custody prevent the non-custodial parent from exercising his or her FERPA rights?

No. FERPA rights are given to both parents. The school may assume that a parent has these rights unless it has evidence to the contrary. The school does not need the permission of the custodial parent to give access to the non-custodial parent.

¹ The pamphlet was developed by the Family Policy Compliance Office of the U.S. Department of Education.

For questions about the content of this product, please contact Lee M. Hoffman.