August 13, 2004

Parent

Dear Parent:

This responds to your May 13, 2004 letter, and July 26, 2004, follow-up
letter asking for guidance on provisions in the Family Educational
Rights and Privacy Act (FERPA), 20 U.S.C. § 1232g, that govern a
parent's opportunity to seek amendment of the education records of a
special education student. The Family Policy Compliance Office (FPCO)
administers FERPA and implementing regulations found at 34 CFR Part 99.
These records are also subject to the Confidentiality of Information
regulations for Part B of the Individuals with Disabilities Education
Act (IDEA) found at 34 CFR §§ 300.560-300.577. Part B of the IDEA is a
Federal program administered by the Office of Special Education Programs
(OSEP). This letter has been prepared in consultation with OSEP.

Question #1: Section 99.21 of the FERPA regulations, 34 CFR § 99.21,
provides that an educational agency or institution must give a parent
the opportunity for a hearing to challenge the content of the student's
education records on the grounds that the information is inaccurate,
misleading, or in violation of the privacy rights of the student. You
asked whether the educational agency or institution can bypass this type
of hearing and instead require the parent to proceed directly to a due
process hearing before a state administrative law judge under state
special education regulations.

Part B regulations at 34 CFR § 300.568 provide the same opportunity for
a hearing to challenge the content of education records as provided in §
99.21 of the FERPA regulations. 34 CFR §300.568 provides that a public
agency shall, \"on request, provide an opportunity for a hearing to
challenge information in education records to ensure that it is not
inaccurate, misleading, or otherwise in violation of the privacy or
other rights of the child.\" 34 CFR §300.570 further provides that a
hearing held under 34 CFR § 300.568 must be conducted according to the
hearing procedures contained in § 99.22 of the FERPA regulations.

This right is not unlimited, however, and a school is not required by
FERPA to afford a parent the right to seek to change substantive
decisions made by school officials, such as grades or other evaluations,
including decisions regarding special education students. The primary
source of legislative history regarding this provision is contained in
the \"Joint Statement in Explanation of Buckley/Pell Amendment,\" Volume
120 of the [Congressional Record]{.underline}, pages 39862-39866, which
states that it was \"not intended to overturn established standards and
procedures for the challenge of substantive decisions made by an
educational insti­tu­tion.\" That is, FERPA is intended to require only
that educational agencies and institutions conform to fair recordkeeping
practices and not to override accepted standards and procedures for
making academic assessments, disciplinary rulings, placement
determinations, and other evaluations. Accordingly, the right to seek
amendment of education records cannot be used to challenge a grade or
evaluation unless it has been inaccurately recorded.

Page 2 -- Parent

A hearing on the amendment of records under 34 CFR §300.568 is a
separate hearing procedure from the impartial due process hearing under
Part B of the IDEA. Part B provides that a parent or public agency may
initiate a due process hearing on matters relating to identification,
evaluation, or educational placement, and provision of a free
appropriate public education. 34 CFR §300.507(a). As such, if a parent
requests that information in a student\'s records be amended and the
public agency refuses to amend the information in accordance with the
request, a public agency may not bypass a parent\'s right to a hearing
under 34 CFR §300.568, which is governed by FERPA, and require the
parent to request an impartial due process hearing under 34 CFR
§300.507(a). Questions involving a violation of FERPA requirements
regarding education records are not within the jurisdiction of a hearing
officer in a due process hearing convened pursuant to 34 CFR §300.507(a)
of the IDEA.

Question #2: Section 99.22(c) of the FERPA regulations, 34 CFR §
99.22(c), provides that a hearing on amendment of education records "may
be conducted by any individual, including an official of the educational
agency or institution, who does not have a direct interest in the
outcome of the hearing." You asked if this requirement is permissive or
mandatory, and whether there are any guidelines to help ensure an
unbiased and disinterested outcome. You expressed particular concern
whether a hearing on amendment of education records may be conducted by
the supervisor or a colleague of the school official who made the
initial decision not to amend the student's records.

The requirement in section 99.22(c) is mandatory, not permissive -- the
hearing official may not have a "direct interest in the outcome of the
hearing." While there are no specific guidelines, the legislative
history regarding this provision indicates that schools and local
districts should have some flexibility in conducting these hearings
consistent with a rule of reason. In particular, the Joint Statement in
Explanation of Buckley/Pell Amendment as recorded at page 39864 of the
December 13, 1974 [Congressional Record]{.underline} states:

> The law is not specific concerning the format, procedure, or mechanism
> for the conduct of such a hearing at the local level. It is the intent
> of the sponsors of these amendments that again a rule of reason would
> be followed by those participants involved. Since the hearing is to be
> conducted at the local level, a detailed specification of procedures
> cannot be drawn that could possibly apply to each of the thousands of
> school districts and colleges across the nation.... In some cases, a
> school district might wish to offer the parent a hearing at the
> district level; in other instances, disputes about the content of
> records might be better handled at the local school level. It is not
> the intent of the amendment to burden schools with onerous hearing
> procedures.

Page 3 -- Parent

We believe that section 99.22(c) does not require automatic
disqualification of any employee or official of the school or agency
that makes an initial decision not to amend education records. However,
a rule of reason approach suggests that the deciding official in a
section 99.22(c) hearing on amendment of education records must be
someone who does not have a personal or professional interest that would
conflict with his or her objectivity in the hearing. Reason suggests
that ordinarily a school or agency would not assign as hearing officer
either the individual who determined not to amend education records or
someone who is in a direct reporting or close collegial relationship
with that individual.

Question #3: Section 99.21(b) of the FERPA regulations provides that if
an educational agency or institution decides against amending an
education record as a result of a hearing, it must inform the parent of
the right to place a statement in the record commenting on the contested
information or stating why the parent disagrees with the decision. You
asked whether section 99.21(c) requires the agency or institution to
place the parent's statements directly with each contested part of the
record, or whether the statements may simply be placed together in the
most recent dated folder with the understanding that the parent's
statement will be made available when the contested parts of the record
are reviewed.

Section 99.21(c) provides that an educational agency or institution
must:

(1) Maintain the statement with the contested part of the record for as
    long as the record is maintained; and

(2) Disclose the statement whenever it discloses the portion of the
    record to which the statement relates.

The requirement is stated in plain and unambiguous language that the
parent's statement must be maintained with each part of the record that
is contested. The purpose of this requirement is to ensure that the
parent's statement is disclosed whenever a contested portion of the
student's record is reviewed or disclosed. That purpose may easily be
circumvented, even unintentionally, if parental statements are placed
away from the contested parts of a student's records, especially when
records are complex or voluminous. Therefore, it is our opinion that
separate statements contesting various parts of a student's education
record may not be placed together in a single location.

Question #4: You noted that section 99.60(c) of the FERPA regulations
identifies the Office of Administrative Law Judges as the Review Board
for enforcement purposes and asked whether this refers to the state
administrative law judges that administer due process hearings.

Page 4 -- Parent

Section 99.60(c) refers to Federal administrative law judges at the U.S.
Department of Education and not state administrative law judges
responsible for conducting an impartial due process hearing pursuant to
34 CFR §300.507. FPCO enforces the requirements for a hearing under
section 99.21 of the FERPA regulations.

I trust that this responds to your inquiries.

Sincerely,

**/s/**

LeRoy S. Rooker

Director

Family Policy Compliance Office

Cc: Stephanie Smith Lee, Director

Office of Special Education Programs