Originally appeared in the CAS Weekly Newsletter
Dear Legal Mailbag:
As a faithful reader of Legal Mailbag, I was interested to read last week that parents have the right to ask that school records be amended and can even demand a hearing if school officials do not grant the parent’s request.
I feel that I am between a rock and a hard place because, like the writer last week, I am dealing with a conflict between a student and a parent. The student I am dealing with is transgender and wants school records changed. His parent, however, objects to changing the school records and insists that the cumulative record continue to refer to the student as female.
Reading the Civil Rights Protections and Supports for Transgender Students: Frequently Asked Questions published in 2017 by the State Department of Education, I read:
Current law does not provide a clear rule for school districts to follow as to whether a school should change a minor student’s educational record at the student’s request if the parents object. However, declining to use a student’s chosen name, gender marker and pronoun simply because a parent/guardian objects would raise serious concerns under existing law and could cause severe psychological/emotional harm to the student.
Given that guidance and the concern expressed about “severe psychological/emotional harm” to the student, I am inclined to acquiesce to the student’s request. But now I understand that the parents can challenge me if I do, and I don’t want to be sued. What can Legal Mailbag tell me about the parent’s rights here?
Assessing the Risk
Legal Mailbag must leave to you the decision whether to change the school records. As Legal Mailbag emphasized last week, the best course here is to help the student and the parent find common ground. However, that may not be possible, and Legal Mailbag can outline the established method for a parent to challenge information contained in school records.
The Family Educational Rights and Privacy Act (FERPA), 20 U.S.C. § 1232g, provides that a parent or an eligible student (a student 18 years of age or older to whom FERPA rights transfer at age 18) may request amendment of school records if the parent (or eligible student) believes the school record to be ““inaccurate, misleading or in violation of the student’s rights of privacy.” 34 C.F.R. § 99.20.
Under FERPA, the decision whether to change the record pursuant to such a request ultimately remains with school officials. The required review procedures include the opportunity to request a change and an opportunity for a hearing if the district declines to make the requested change. The matter must be heard “within a reasonable time” after the request is made, and the decision must be made by an official who does not have a “direct interest” in the matter, though the hearing officer may be an employee of the district. If, after hearing, the district does not make the requested change, it must inform the parent of his or her right to place a statement in the record commenting on the information or stating why he or she disagrees with the record. When that record is then disclosed by the school district to third parties, any such statement by the parent must also be disclosed. See 34 C.F.R. § 99.21.
As you read from this description of FERPA procedures for amending school records, the final decision on a request to amend school records rests with school officials, albeit with a school official without a “direct interest.” The question, then, is whether a parent or eligible student disappointed by a final decision of school officials can sue under FERPA. Legal Mailbag is pleased to say that the answer to your question is no.
In 2002, the United States Supreme Court ruled that parents and eligible students do not have a private right of action under FERPA. Gonzaga University v. Doe, 536 U.S. 273 (2002). There, Gonzaga University employees disclosed information contained in a student’s file about an alleged sexual assault by the student. The former student brought numerous claims, including a FERPA claim, and was awarded $1,155,000 in damages for the release of that information, including $450,000 for the FERPA violation. However, the United States Supreme Court reversed, holding that FERPA does not authorize private lawsuits against educational institutions for FERPA violations. The Court explained that Congress must speak unambiguously when it creates a private right of action under the Spending Clause. The Court noted that FERPA provides that persons claiming a violation of FERPA may file a complaint with the United States Department of Education, which will investigate and can even withhold federal funds in response to a violation. Given that FERPA provides that mechanism for challenging alleged violations of FERPA, the Court ruled that Congress did not intend that there also be a private right of action.
Here, the parent’s only claim would be that the district did not follow the procedures for challenging school records as set forth in FERPA. If the district follows the procedures described above, there will be no basis for such a complaint. In any event, the parent will not be able to sue successfully under FERPA.