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United States Code (Last Updated: May 24, 2014) |
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Title 20. EDUCATION |
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Chapter 31. GENERAL PROVISIONS CONCERNING EDUCATION |
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SubChapter III. GENERAL REQUIREMENTS AND CONDITIONS CONCERNING OPERATION AND ADMINISTRATION OF EDUCATION PROGRAMS: GENERAL AUTHORITY OF SECRETARY |
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Part 4. Records; Privacy; Limitation on Withholding Federal Funds |
§ 1232g. Family educational and privacy rights
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(a) Conditions for availability of funds to educational agencies or institutions; inspection and review of education records; specific information to be made available; procedure for access to education records; reasonableness of time for such access; hearings; written explanations by parents; definitions (1) (A) No funds shall be made available under any applicable program to any educational agency or institution which has a policy of denying, or which effectively prevents, the parents of students who are or have been in attendance at a school of such agency or at such institution, as the case may be, the right to inspect and review the education records of their children. If any material or document in the education record of a student includes information on more than one student, the parents of one of such students shall have the right to inspect and review only such part of such material or document as relates to such student or to be informed of the specific information contained in such part of such material. Each educational agency or institution shall establish appropriate procedures for the granting of a request by parents for access to the education records of their children within a reasonable period of time, but in no case more than forty-five days after the request has been made. (B) No funds under any applicable program shall be made available to any State educational agency (whether or not that agency is an educational agency or institution under this section) that has a policy of denying, or effectively prevents, the parents of students the right to inspect and review the education records maintained by the State educational agency on their children who are or have been in attendance at any school of an educational agency or institution that is subject to the provisions of this section. (C) The first sentence of subparagraph (A) shall not operate to make available to students in institutions of postsecondary education the following materials: (i) financial records of the parents of the student or any information contained therein; (ii) confidential letters and statements of recommendation, which were placed in the education records prior to January 1, 1975 , if such letters or statements are not used for purposes other than those for which they were specifically intended;(iii) if the student has signed a waiver of the student’s right of access under this subsection in accordance with subparagraph (D), confidential recommendations— (I) respecting admission to any educational agency or institution, (II) respecting an application for employment, and (III) respecting the receipt of an honor or honorary recognition. (D) A student or a person applying for admission may waive his right of access to confidential statements described in clause (iii) of subparagraph (C), except that such waiver shall apply to recommendations only if (i) the student is, upon request, notified of the names of all persons making confidential recommendations and (ii) such recommendations are used solely for the purpose for which they were specifically intended. Such waivers may not be required as a condition for admission to, receipt of financial aid from, or receipt of any other services or benefits from such agency or institution. (2) No funds shall be made available under any applicable program to any educational agency or institution unless the parents of students who are or have been in attendance at a school of such agency or at such institution are provided an opportunity for a hearing by such agency or institution, in accordance with regulations of the Secretary, to challenge the content of such student’s education records, in order to insure that the records are not inaccurate, misleading, or otherwise in violation of the privacy rights of students, and to provide an opportunity for the correction or deletion of any such inaccurate, misleading or otherwise inappropriate data contained therein and to insert into such records a written explanation of the parents respecting the content of such records. (3) For the purposes of this section the term “educational agency or institution” means any public or private agency or institution which is the recipient of funds under any applicable program. (4) (A) For the purposes of this section, the term “education records” means, except as may be provided otherwise in subparagraph (B), those records, files, documents, and other materials which— (i) contain information directly related to a student; and (ii) are maintained by an educational agency or institution or by a person acting for such agency or institution. (B) The term “education records” does not include— (i) records of instructional, supervisory, and administrative personnel and educational personnel ancillary thereto which are in the sole possession of the maker thereof and which are not accessible or revealed to any other person except a substitute; (ii) records maintained by a law enforcement unit of the educational agency or institution that were created by that law enforcement unit for the purpose of law enforcement; (iii) in the case of persons who are employed by an educational agency or institution but who are not in attendance at such agency or institution, records made and maintained in the normal course of business which relate exclusively to such person in that person’s capacity as an employee and are not available for use for any other purpose; or (iv) records on a student who is eighteen years of age or older, or is attending an institution of postsecondary education, which are made or maintained by a physician, psychiatrist, psychologist, or other recognized professional or paraprofessional acting in his professional or paraprofessional capacity, or assisting in that capacity, and which are made, maintained, or used only in connection with the provision of treatment to the student, and are not available to anyone other than persons providing such treatment, except that such records can be personally reviewed by a physician or other appropriate professional of the student’s choice. (5) (A) For the purposes of this section the term “directory information” relating to a student includes the following: the student’s name, address, telephone listing, date and place of birth, major field of study, participation in officially recognized activities and sports, weight and height of members of athletic teams, dates of attendance, degrees and awards received, and the most recent previous educational agency or institution attended by the student. (B) Any educational agency or institution making public directory information shall give public notice of the categories of information which it has designated as such information with respect to each student attending the institution or agency and shall allow a reasonable period of time after such notice has been given for a parent to inform the institution or agency that any or all of the information designated should not be released without the parent’s prior consent. (6) For the purposes of this section, the term “student” includes any person with respect to whom an educational agency or institution maintains education records or personally identifiable information, but does not include a person who has not been in attendance at such agency or institution. (b) Release of education records; parental consent requirement; exceptions; compliance with judicial orders and subpoenas; audit and evaluation of federally-supported education programs; recordkeeping (1) No funds shall be made available under any applicable program to any educational agency or institution which has a policy or practice of permitting the release of education records (or personally identifiable information contained therein other than directory information, as defined in paragraph (5) of subsection (a) of this section) of students without the written consent of their parents to any individual, agency, or organization, other than to the following— (A) other school officials, including teachers within the educational institution or local educational agency, who have been determined by such agency or institution to have legitimate educational interests, including the educational interests of the child for whom consent would otherwise be required; (B) officials of other schools or school systems in which the student seeks or intends to enroll, upon condition that the student’s parents be notified of the transfer, receive a copy of the record if desired, and have an opportunity for a hearing to challenge the content of the record; (C) (i) authorized representatives of (I) the Comptroller General of the United States, (II) the Secretary, or (III) State educational authorities, under the conditions set forth in paragraph (3), or (ii) authorized representatives of the Attorney General for law enforcement purposes under the same conditions as apply to the Secretary under paragraph (3); (D) in connection with a student’s application for, or receipt of, financial aid; (E) State and local officials or authorities to whom such information is specifically allowed to be reported or disclosed pursuant to State statute adopted— (i) before November 19, 1974 , if the allowed reporting or disclosure concerns the juvenile justice system and such system’s ability to effectively serve the student whose records are released, or(ii) after November 19, 1974 , if—(I) the allowed reporting or disclosure concerns the juvenile justice system and such system’s ability to effectively serve, prior to adjudication, the student whose records are released; and (II) the officials and authorities to whom such information is disclosed certify in writing to the educational agency or institution that the information will not be disclosed to any other party except as provided under State law without the prior written consent of the parent of the student. of title 42 concerning registered sex offenders who are required to register under such section. (B) The Secretary shall take appropriate steps to notify educational institutions that disclosure of information described in subparagraph (A) is permitted. (c) Surveys or data-gathering activities; regulations Not later than 240 days after
October 20, 1994 , the Secretary shall adopt appropriate regulations or procedures, or identify existing regulations or procedures, which protect the rights of privacy of students and their families in connection with any surveys or data-gathering activities conducted, assisted, or authorized by the Secretary or an administrative head of an education agency. Regulations established under this subsection shall include provisions controlling the use, dissemination, and protection of such data. No survey or data-gathering activities shall be conducted by the Secretary, or an administrative head of an education agency under an applicable program, unless such activities are authorized by law.(d) Students’ rather than parents’ permission or consent For the purposes of this section, whenever a student has attained eighteen years of age, or is attending an institution of postsecondary education, the permission or consent required of and the rights accorded to the parents of the student shall thereafter only be required of and accorded to the student.
(e) Informing parents or students of rights under this section No funds shall be made available under any applicable program to any educational agency or institution unless such agency or institution effectively informs the parents of students, or the students, if they are eighteen years of age or older, or are attending an institution of postsecondary education, of the rights accorded them by this section.
(f) Enforcement; termination of assistance The Secretary shall take appropriate actions to enforce this section and to deal with violations of this section, in accordance with this chapter, except that action to terminate assistance may be taken only if the Secretary finds there has been a failure to comply with this section, and he has determined that compliance cannot be secured by voluntary means.
(g) Office and review board; creation; functions The Secretary shall establish or designate an office and review board within the Department for the purpose of investigating, processing, reviewing, and adjudicating violations of this section and complaints which may be filed concerning alleged violations of this section. Except for the conduct of hearings, none of the functions of the Secretary under this section shall be carried out in any of the regional offices of such Department.
(h) Disciplinary records; disclosure Nothing in this section shall prohibit an educational agency or institution from— (1) including appropriate information in the education record of any student concerning disciplinary action taken against such student for conduct that posed a significant risk to the safety or well-being of that student, other students, or other members of the school community; or (2) disclosing such information to teachers and school officials, including teachers and school officials in other schools, who have legitimate educational interests in the behavior of the student. (i) Drug and alcohol violation disclosures (1) In general Nothing in this Act or the Higher Education Act of 1965 [20 U.S.C. 1001 et seq., 42 U.S.C. 2751 et seq.] shall be construed to prohibit an institution of higher education from disclosing, to a parent or legal guardian of a student, information regarding any violation of any Federal, State, or local law, or of any rule or policy of the institution, governing the use or possession of alcohol or a controlled substance, regardless of whether that information is contained in the student’s education records, if— (A) the student is under the age of 21; and (B) the institution determines that the student has committed a disciplinary violation with respect to such use or possession. (2) State law regarding disclosure Nothing in paragraph (1) shall be construed to supersede any provision of State law that prohibits an institution of higher education from making the disclosure described in subsection (a) of this section.
(j) Investigation and prosecution of terrorism (1) In general Notwithstanding subsections (a) through (i) of this section or any provision of State law, the Attorney General (or any Federal officer or employee, in a position not lower than an Assistant Attorney General, designated by the Attorney General) may submit a written application to a court of competent jurisdiction for an ex parte order requiring an educational agency or institution to permit the Attorney General (or his designee) to— (A) collect education records in the possession of the educational agency or institution that are relevant to an authorized investigation or prosecution of an offense listed in section 2332b(g)(5)(B) of title 18, or an act of domestic or international terrorism as defined in section 2331 of that title; and (B) for official purposes related to the investigation or prosecution of an offense described in paragraph (1)(A), retain, disseminate, and use (including as evidence at trial or in other administrative or judicial proceedings) such records, consistent with such guidelines as the Attorney General, after consultation with the Secretary, shall issue to protect confidentiality. (2) Application and approval (A) In general.— An application under paragraph (1) shall certify that there are specific and articulable facts giving reason to believe that the education records are likely to contain information described in paragraph (1)(A). (B) The court shall issue an order described in paragraph (1) if the court finds that the application for the order includes the certification described in subparagraph (A). (3) Protection of educational agency or institution An educational agency or institution that, in good faith, produces education records in accordance with an order issued under this subsection shall not be liable to any person for that production.
(4) Record-keeping Subsection (b)(4) of this section does not apply to education records subject to a court order under this subsection.
References In Text
The Richard B. Russell National School Lunch Act, referred to in subsec. (b)(1)(K), is act June 4, 1946, ch. 281, 60 Stat. 230, which is classified generally to chapter 13 (§ 1751 et seq.) of Title 42, The Public Health and Welfare. For complete classification of this Act to the Code, see Short Title note set out under section 1751 of Title 42 and Tables.
The Child Nutrition Act of 1966, referred to in subsec. (b)(1)(K), is Pub. L. 89–642,
Section 3 of the Child Abuse Prevention and Treatment Act, referred to in subsec. (b)(2)(B), is section 3 of Pub. L. 93–247, which is set out as a note under section 5101 of Title 42, The Public Health and Welfare.
Section 14071 of title 42, referred to in subsec. (b)(7)(A), was repealed by Pub. L. 109–248, title I, § 129(a),
This Act, referred to in subsec. (i)(1), is Pub. L. 90–247,
The Higher Education Act of 1965, referred to in subsec. (i)(1), is Pub. L. 89–329,
Prior Provisions
A prior section 444 of Pub. L. 90–247 was classified to section 1233c of this title prior to repeal by Pub. L. 103–382.
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
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) of this section)” 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.
Effective Date Of Amendment
Amendment by Pub. L. 111–296 effective
Amendment by Pub. L. 107–110 effective
Amendment by Pub. L. 105–244 effective
Pub. L. 102–325, title XV, § 1555(b),
Amendment by Pub. L. 96–46 effective
Pub. L. 93–568, § 2(b),
Effective Date
Pub. L. 93–380, title V, § 513(b)(1),