Originally appeared in the CAS Weekly NewsBlast. Written by Attorney Thomas B. Mooney.

legal_mailbag_transparentDear Legal Mailbag:

I am just finishing up my first year as an assistant principal, and I hope that you can help me with an issue that has concerned me. Early in my tenure here, a paraprofessional asked to review the IEP for a student with whom she was working. I know that special education records are highly confidential under FERPA, and I asked the principal for guidance because I wanted to be sure of my answer. He told me that the paraprofessional was not entitled to see the IEP because she is not a certified teacher. When I got back to the paraprofessional with that response, she said “OKAY . . .” in an ominous way that was unsettling, and I have been wondering ever since whether we gave the right answer. Since the principal is retiring, I figure that I can now again ask the question; and, I will follow your advice next year, whatever it is.

Haunted by Uncertainty

Dear Haunted:

Better late than never. You are right that special education records are confidential, but all personally-identifiable student information is confidential under FERPA. The real question is whether the paraprofessional has the right to see the information in accordance with FERPA. The answer is yes, as long as she has a legitimate educational interest in the information.

FERPA does indeed provide that personally-identifiable student information (which of course includes an IEP) is confidential, and such information may not generally be disclosed without parent consent. However, the FERPA regulations provide that school officials may review student records without first receiving parent consent when they have “legitimate educational interests” in the information. Indeed, the regulations even provide that contractors or volunteers may be considered “school officials” when they have such interests. Clearly, then, a paraprofessional who is working directly with a special education child would be a “school official” who wold have a legitimate educational interest in seeing any part of the IEP that has information relevant to the paraprofessional’s responsibilities. It would have been proper for you to permit the paraprofessional to review the student’s IEP. Indeed, it would have been advisable for you to do so.

Please submit your questions to: legalmailbag@casciac.org.