Dated December 4, 2001

Honorable Roscoe E. Bartlett

Member, House of Representatives

5831 Buckeystown Pike, Suite E

Frederick, Maryland 21704

Dear Mr. Bartlett:

This is in response to your letter dated March 29, 2001, on behalf of
your constituent, X. In a letter addressed to you dated March 23, 2001,
she expressed concerns over the misuse and possible violation of the
Family Educational Rights and Privacy Act (FERPA), by the X County
Public Schools (District). Your letter was initially referred to the
Office of Special Education Programs (OSEP) because X concern involved
education records of special education students. However, after
consultation with OSEP, it was determined that this Office, the Family
Policy Compliance Office (FPCO), is the appropriate office to respond to
the issues raised by your constituent because we are responsible for
administering FERPA.

OSEP informed this Office that, in an attempt to assist you and your
constituent, OSEP\'s contact for the State of Maryland, Michael F.
Slade, contacted your office and spoke with Micki Hamilton requesting
authorization to contact directly. Although authorized to do so, Mr.
Slade was unable to contact X because the telephone number of record was
no longer a working number.

Nonetheless, based on the information provided, it appears that the
District employed the services of the George Washington University\'s
Center for Excellence and Equity in Education (Center) to investigate
statistical findings that implied that minority children were being
disproportionately referred to the District\'s special education
programs. The District provided the Center with a limited number of
student files for its review and analysis.

Briefly, FERPA gives parents certain rights with respect to their
children\'s education records. See 20 U.S.C. § 1232g and 34 CFR Part 99.
In particular, FERPA generally prohibits the disclosure of a student\'s
education records without the prior written consent of the parent. FERPA
defines the term \"education records\" as:

> 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.

20 U.S.C. § 1232g(a)(4)(A); 34 CFR § 99.3 \"Education records.\"

While FERPA generally prohibits the disclosure of education records
without prior written consent, there are several statutory exceptions to
this rule. One exception allows for the disclosure of education records
to school officials with a legitimate educational interest in the
records. School officials are broadly defined to include contractors and
other third parties carrying out activities for the school that the
school would otherwise do itself. Here, the District hired the Center to
perform a service on its behalf. The disclosures to the Center, as a
contractor acting for the district, are permitted under the school
officials\' exception. [See]{.underline} 34 CFR 99.31(a)(1). Under this
exception, the District must list the Center as a \"school official\"
with a \"legitimate educational interest\" in the annual notification,
or an amendment to such notification, required under 34 CFR 99.7.

Another potentially applicable statutory exception provides that the
educational agency or institution may disclose personally identifiable
information from an education record of a student without parental
consent if the disclosure is to organizations conducting studies for, or
on behalf of, educational agencies or institutions to improve
instruction. [See]{.underline} 34 CFR 99.3 1(a)(6)(i)(C). We do not have
enough information about the particulars of the study to conclude that
the purpose of the study is to improve instruction.

It is also worth noting additional requirements under this exception.
Specifically, under its provisions, the organization must \"conduct the
study in a manner that does not permit personal identification of
parents and students by individuals other than representatives of the
organization\" and must destroy the information \"when no longer needed
for the purposes for which the study was conducted.\" [See]{.underline}
34 CFR 99.3 1(a)(6)(ii)(A) and 03). Based on the information provided to
us, it appears that no personally identifiable information on a student
was disclosed by the Center in its final report or its presentation of
the report and that all information was disclosed in aggregate form.
Thus, it appears that the District, and the Center acting on behalf of
the District, complied with its requirement not to redisclose personally

identifiable information from an education record.

FERPA also requires that if a school hires an organization to conduct a
study, as the District did here, the school must maintain a record of
each request for access to and each disclosure of personally
identifiable information from the education records of each student with
that student\'s education records. [See]{.underline} 34 CFR 99.32(a). In
sum, from the information provided to us from your office, including
documents provided by X we have determined that the disclosures made by
the District to the Center without parental consent appear to be
consistent with FERPA.

OSEP informs us that X other concerns regarding the interpretation of
the Center\'s study and the subsequent use of the data, issues not
related to FERPA, should be addressed directly with the Maryland State
Department of Education (MSDE). Included below is the name and address
of the Assistant State Superintendent for the MSDE charged with
overseeing special education in the State of Maryland:

Dr. Carol Ann Baglin

Assistant State Superintendent

Maryland State Department of Education

Division of Special Education/Early

Intervention Services

200 West Baltimore Street

Baltimore, Maryland 21201-2595

I hope this information is helpful. If this Office can be of further
assistance regarding this matter, please feel free to contact me at
(202) 260-3887.

Sincerely,

> /signed Ingrid Brault for/

LeRoy Rooker

Director

Family Policy Compliance Office