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> September 2008

Dear Chief State School Officer:

The No Child Left Behind Act of 2001 (NCLB) amended the Protection of
Pupil Rights Amendment (PPRA) to require that the Department of
Education (Department) notify annually each State educational agency
(SEA) and each local educational agency (LEA) of their obligations under
PPRA and under the Family Educational Rights and Privacy Act (FERPA).
This letter serves to provide that notification to the SEA. The
requirements placed on the SEA by each law are discussed below.

## **Family Educational Rights and Privacy Act (FERPA)**

Statute: 20 U.S.C. § 1232g. Regulations: 34 CFR Part 99.

FERPA applies to an "educational agency or institution" that receives
funds under a program administered by the U.S. Department of Education.
While an SEA may receive funds from the Department, as a practical
matter, FERPA generally would not apply to the records of an SEA. This
is because FERPA defines "education records" as information directly
related to a "student," which itself is defined as excluding a person
who has not been in attendance at the educational agency or institution.
20 U.S.C. § 1232g(a)(4) and (a)(6). Since students generally are not in
attendance at an SEA, it follows that FERPA does not generally apply to
the SEA. However, FERPA does provide parents with the right to inspect
and review education records maintained by the SEA within 45 days of
receipt of a request. 20 U.S.C. § 1232g(a)(1)(B); 34 CFR § 99.10(a)(2).
**This includes, for example, State assessments administered by LEAs and
maintained by the SEA**. The SEA may make the education records
available to the parent either directly, by sending them to the LEA for
inspection and review, or making other appropriate arrangements. For
more information on this provision, see 20 U.S.C. § 1232g(a)(1)(A); 34
CFR § 99.10.

FERPA permits educational agencies and institutions, such as LEAs and
their constituent schools, to disclose education records to SEAs and
other State educational authorities without a parent's prior consent
under certain conditions. For a review of the exceptions to the general
prior consent rule in FERPA, see 34 CFR § 99.31. The most common
exception that relates to disclosure to a State educational authority is
found in 34 CFR

§ 99.31(a)(3) and § 99.35.

-   The disclosure must be in connection with:

    -   An audit or evaluation of Federal or State supported education
        programs; or

    -   The enforcement of or compliance with Federal legal requirements
        relating to such programs.

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-   Information collected under this provision must be:

    -   Protected so that information is not disclosed to anyone other
        than the authorized representatives of the State educational
        authority (34 CFR

> § 99.35(b)(1)); and,

-   Destroyed when no longer needed for the purposes listed above (34
    CFR

> § 99.35(b)(2)).

### **Requirement Concerning Transfer of Disciplinary Records**

Section 4155 of the Elementary and Secondary Education Act of 1965
(ESEA), 20 U.S.C.

§ 7165(b), as amended by the NCLB, requires a State that receives funds
under the ESEA to assure the Secretary that it "has a procedure in place
to facilitate the transfer of disciplinary records, with respect to a
suspension or expulsion, by local educational agencies to any private or
public elementary school or secondary school for any student who is
enrolled or seeks, intends, or is instructed to enroll, on a full- or
part-time basis, in the school." FERPA provides specifically that an
educational agency or institution may disclose education records,
without parental consent, to a school in which the student seeks or
intends to enroll, subject to conditions set forth in 34 CFR § 99.34.
FERPA also allows disclosure of appropriate information regarding
specified disciplinary actions to teachers and school officials,
including those in other schools, who have legitimate educational
interests in the behavior of the student. See 34 CFR § 99.36(b).

# 

# **Protection of Pupil Rights Amendment (PPRA)**

Statute: 20 U.S.C. § 1232h. Regulations: 34 CFR Part 98.

PPRA applies to the programs and activities of an SEA, LEA, or other
recipient of funds under any program funded by the U.S. Department of
Education. It governs the administration to students of a survey,
analysis, or evaluation that concerns one or more of the following eight
protected areas:

1.  political affiliations or beliefs of the student or the student's
    parent;

2.  mental or psychological problems of the student or the student's
    family;

3.  sex behavior or attitudes;

4.  illegal, anti-social, self-incriminating, or demeaning behavior;

5.  critical appraisals of other individuals with whom respondents have
    close family relationships;

6.  legally recognized privileged or analogous relationships, such as
    those of lawyers, physicians, and ministers;

7.  religious practices, affiliations, or beliefs of the student or
    student's parent; or,

8.  income (other than that required by law to determine eligibility for
    participation in a program or for receiving financial assistance
    under such program).

PPRA also concerns marketing surveys and other areas of student privacy,
parental access to information, and the administration of certain
physical examinations to minors.

The rights under PPRA transfer from the parents to a student who is 18
years old or an emancipated minor under State law.

LEAs must provide parents and eligible students effective notice of
their rights under PPRA. The notice must explain that an LEA is required
to obtain prior written consent from parents before students are
required to submit to a survey that concerns one or more of the eight
protected areas listed above, if the survey is funded in whole or in
part by Department funds. For surveys that contain questions from one or
more of the eight protected areas that are not funded in whole or in
part with Department funds, LEAs must notify a parent at least annually,
at the beginning of the school year, of the specific or approximate
date(s) of the survey and provide the parent with an opportunity to opt
his or her child out of participating. LEAs must also notify parents
that they have the right to review, upon request, any instructional
materials used in connection with any survey that concerns one or more
of the eight protected areas and those used as part of the educational
curriculum.

PPRA requires LEAs to work with parents to develop and adopt policies on
the following items unless the LEA or SEA had established comparable
policies on or before the date of enactment of NCLB on January 8, 2002:

-   The right of parents to inspect, upon request, a survey created by a
    third party before the survey is administered or distributed by a
    school to students and the procedure for granting a request by a
    parent for such access.

-   Arrangements to protect student privacy that are provided by the LEA
    in the event of the administration of a survey to students
    containing one or more of the eight protected items of information
    noted above (including the right of parents to inspect, upon
    request, a survey that concerns one or more of the eight protected
    items of information).

-   The right of parents to inspect, upon request, any instructional
    material used as part of the educational curriculum for students,
    and the procedure for granting a request by a parent for such
    access.

-   Administration of physical exams or screenings of students;

-   The collection, disclosure, or use of personal information
    (including items such as a student's or parent's first and last
    name, address, telephone number or social security number) collected
    from students for marketing purposes, or to sell or otherwise
    provide the information to others for marketing purposes, including
    the LEA's arrangements for protecting student privacy in the event
    of collection, disclosure, or use of information for these purposes.

-   The right of parents to inspect, upon request, any instrument used
    in the collection of personal information for marketing or sales
    purposes before the instrument is administered or distributed to a
    student and the LEA's procedure for granting a parent's request for
    such access.

LEAs must notify parents of their rights under PPRA and of these
policies at least annually at the beginning of the school year. LEAs
must also notify parents within a reasonable period of time if any
substantive change is made to the policies.

In addition, an LEA must "directly" notify, such as through U.S. Mail or
email, parents of students who are scheduled to participate in the
specific activities or surveys listed below and provide an opportunity
for parents to opt their child out of participation in the specific
survey or activity. The notification must be provided at least annually
at the beginning of the school year and must provide the specific or
approximate dates during the school year when activities described below
are scheduled, or expected to be scheduled. If the LEA is unable to
identify the specific or approximate dates of the activities or surveys
requiring specific notification at the beginning of the school year, it
must provide this notification to parents once the activity or survey is
scheduled. Parents should be provided reasonable notification of the
planned activities and surveys and be provided an opportunity to opt
their child out, as well as be provided with an opportunity to review
any pertinent surveys. A model specific notification for use by LEAs is
attached and may also be obtained on the Web site noted at the end of
this guidance. LEAs must offer an opportunity for parents to opt their
child out of participating in the following activities:

-   The administration of any survey concerning one or more of the eight
    protected areas listed above if it is not funded in whole or in part
    with Department funds. (LEAs must obtain active consent, and may not
    use an opt-out procedure, if the survey is funded in whole or in
    part with Department funds.)

-   Activities involving the collection, disclosure, or use of personal
    information collected from students for marketing purposes, or to
    sell or otherwise provide the information to others for marketing
    purposes.

-   Any non-emergency, invasive physical examination or screening that
    is 1) required as a condition of attendance; 2) administered by the
    school and scheduled by the school in advance; and 3) not necessary
    to protect the immediate health and safety of the student, or of
    other students. This law does not apply to any physical examination
    or screening that is permitted or required by State law, including
    physical examinations or screenings permitted without parental
    notification.

NCLB does not preempt applicable provisions of State law that require
parental notification. Also, requirements concerning activities
involving the collection and disclosure of personal information from
students for marketing purposes do not apply to the collection,
disclosure, or use of personal information collected from students for
the exclusive purpose of developing, evaluating, or providing
educational products or services for or to students or educational
institutions, such as the following:

1)  College or other postsecondary education recruitment, or military
    recruitment.

2)  Book clubs, magazines, and programs providing access to low-cost
    literary products.

3)  Curriculum and instructional materials used by elementary schools
    and secondary schools.

4)  Tests and assessments used by elementary schools and secondary
    schools to provide cognitive, evaluative, diagnostic, clinical,
    aptitude, or achievement information about students (or to generate
    other statistically useful data for the purpose of securing such
    tests and assessments) and the subsequent analysis and public
    release of the aggregate data from such tests and assessments.

5)  The sale by students of products or services to raise funds for
    school-related or education-related activities.

6)  Student recognition programs.

An SEA or LEA may use funds provided under part A of title V of the ESEA
to enhance parental involvement in areas affecting the in-school privacy
of students, such as reimbursement for costs associated with this direct
notification.

The Family Policy Compliance Office (FPCO) in the Department of
Education administers both FERPA and PPRA. The address and telephone
number are:

Family Policy Compliance Office

U.S. Department of Education

400 Maryland Avenue, S.W.

Washington, D.C. 20202-8520

\(202\) 260-3887

Informal inquiries may be sent to FPCO via the following email
addresses: <FERPA@ED.Gov> and <PPRA@ED.Gov>. The FPCO Web site address
is:
[www.ed.gov/policy/gen/guid/fpco](http://www.ed.gov/policy/gen/guid/fpco).

Sincerely,

> /s/

LeRoy S. Rooker

Director

Family Policy Compliance Office