October 21, 2004

Mr. Thomas D. Watkins

Superintendent of Public Instruction

Michigan Department of Education

608 W. Allegan

Lansing, Michigan 48933

Dear Mr. Watkins:

This is to follow up on your August 31, 2004, letter to this Office
regarding a statutory resolution to the conflict between the Michigan
Open Meetings Act and the Family Educational Rights and Privacy Act
(FERPA), 20 U.S.C. § 1232g. This Office informed you about this conflict
in a letter dated August 13, 2003.

With your letter you provided a copy of Public Act 305 of 2004, signed
into law on August 11, 2004, which resolves the conflict between the two
laws. Specifically, the new law amends the Michigan Open Meetings Act to
prohibit a public body from disclosing in its minutes of meetings any
information that would result in a school district having a policy or
practice of violating FERPA.

We appreciate your efforts and the actions taken by other State
officials to resolve this conflict between Michigan law and FERPA

Sincerely,

/s/

LeRoy S. Rooker

Director

Family Policy Compliance Office

August 13, 2003

**[BY CERTIFIED MAIL]{.underline}**

Mr. Thomas D. Watkins

Superintendent of Public Instruction

Michigan Department of Education

608 W. Allegan

Lansing, Michigan 48933

Dear Mr. Watkins:

This is to notify you of an apparent conflict between Michigan law and
the Family Educational Rights and Privacy Act (FERPA), 20 U.S.C. §
1232g, and the resulting violation of FERPA by local school boards in
the State. This Office administers FERPA and is responsible for
providing technical assistance to educational agencies and institutions
to ensure compliance with the statute and regulations found at 34 CFR
Part 99.

Section 99.61 of the regulations provides that an educational agency or
institution that determines that it cannot comply with FERPA due to a
conflict with State or local law shall notify this Office within 45 days
and include the text and citation of the conflicting law. Mr. Douglas L.
Dinning, counsel for the Roseville Community School District Board of
Education (Board), notified this Office of the apparent conflict by
letter dated

February 5, 2003. Mr. Dinning explained that the Board conducted a
student expulsion hearing and, in accordance with State law, published
minutes of the meeting that identified the student by name, the charge
against the student, and the Board's disposition of the matter. The
letter suggested that the disclosure of information about the student
violated FERPA because the student's parents did not consent. Mr.
Dinning indicated that the Board's practice is consistent with the 1982
decision of the Michigan Court of Appeals in [Palladium Publishing Co.
v. River Valley School District]{.underline}, 321 NW2d 705, 115 Mich.
App. 490, which held that a Board's duty to act through its minutes,
together with certain provisions of the Michigan Open Meetings Act, MCLA
15.261 [et]{.underline} [seq.]{.underline}, mandate that the minutes
identify the disciplined student by name, rather than by student number.
The court noted that there were no reported Michigan cases on point and
cited a previous opinion by the Michigan Attorney General, 1980 OAG
5362, which reached the same conclusion based on the same legal
principles.

Under FERPA, an educational agency or institution may not have policy or
practice of permitting the release of education records, or personally
identifiable information from education records, without the parent's
written consent. 20 U.S.C. § 1232g(b)(1); 34 CFR § 99.30. FERPA applies
to any "educational agency or institution" to which funds have been made
available under any program administered by the Secretary if the

Page 2 -- Mr. Thomas D. Watkins

"educational agency is authorized to direct and control public
elementary or secondary, or postsecondary educational institutions." 34
CFR § 99.1. The term "education records" is defined as records, files,
documents, and other materials that contain

information directly related to a student and that are maintained by an
educational

agency or institution or by a person acting for the agency or
institution. 20 U.S.C.

§ 1232g(a)(4)(A); 34 CFR § 99.3 "Education records." Based on these
provisions, and assuming that public school districts in Michigan
receive funds from the U.S. Department of Education (Department), the
minutes of a local school board meeting that contain the name of a
student and the results of a disciplinary proceeding constitute an
"education record" under FERPA.

FERPA provides for several exceptions to the prior written consent rule,
including an exception for information that has been designated as
"directory information" in accordance with regulatory requirements. 34
CFR §§ 99.3 ("Directory information") and 99.37. "Directory information"
includes a student's name and other information that would not generally
be considered harmful or an invasion of privacy if disclosed. A parent
must be given notice and an opportunity to opt out of disclosures of
directory information. 34 CFR § 99.37. Importantly, personally
identifiable information about disciplinary action taken against a
student may not be disclosed as directory information under FERPA
because it would be considered a harmful or an invasion of privacy if
disclosed.

FERPA allows *postsecondary* educational agencies and institutions to
disclose information about certain disciplinary proceedings without
prior consent in limited circumstances specified at 34 CFR §§
99.31(a)(13) and (14). Information about K-12 disciplinary actions may
be disclosed without consent only if all personally identifiable
information about a student has been removed, including information that
would make the student's identity "easily traceable." 34 CFR § 99.3
"Personally identifiable information." FERPA does not specifically
define \"easily traceable,\" and situations regarding disclosures of
information that could be considered easily traceable must be analyzed
on a case-by-case basis. In making this kind of determination, we
generally consider whether a reasonable person in the educational
community or a requestor who does not have specific knowledge about the
student would be able to identify the student to whom the records relate
without substantial, additional effort.

Based on the Michigan law Mr. Dinning cites, it appears that Michigan
does not allow school boards to release minutes of disciplinary
proceedings without personally identifying the student. As noted above,
there are no exceptions to the prior consent rule in FERPA that permit
local school boards to disclose the results of a disciplinary proceeding
that identifies a student by name, student number, or by inclusion of
other personally identifiable information about a student. As such,
local Michigan school boards are in violation of FERPA to the extent
that they have a policy or practice of

Page 3 -- Mr. Thomas D. Watkins

releasing or otherwise making public minutes that contain the name of a
student, a student's number, or other personally identifiable
information about a student who is referenced in a disciplinary
proceeding, without the written consent of the student's parent.

In general, an actual conflict of laws arises if it is impossible for a
party to comply with both federal and state law, or when a state law
stands as an obstacle to the accomplishment and execution of the full
purposes and objectives of a federal law. [Taubman Realty Group Ltd.
Partnership v. Norman Mineta]{.underline} , 198 F.Supp 2d 744, 761 (E.D.
Va. 2002), *citing* [English v. General Electric]{.underline} , 496 U.S.
72 (1990). Based upon our review of Mr. Dinning's letter and applicable
law, we have determined that the Michigan Open Meetings Act, as
interpreted and applied to the release of the minutes of local school
board proceedings, conflicts with FERPA in that it is impossible for a
Michigan educational agency or institution to comply with both laws in
situations involving student disciplinary proceedings.

As noted most recently in [United States v. Miami University, Ohio State
University,]{.underline} 294 F.3d 797 (6^th^ Cir. 2002), Congress
provided in FERPA that "no funds shall be made available under any
applicable program to any educational agency or institution which has a
policy or practice of releasing, or providing access to, any personally
identifiable information in education records" except as provided in
FERPA. The court explained that legislation, like FERPA, enacted
pursuant to the Constitutional spending power (art. I, § 8, cl. 1) "is
much in the nature of a contract: in return for federal funds, the
States agree to comply with federally imposed conditions." 294 F.3d at
808, *citing* [Pennhurst State School and Hospital]{.underline}, 451
U.S. 1, 17 (1981) (holding that Congress may fix the terms on which it
disburses Federal money to the states, and likening the relationship to
a contract where the receipt of Federal monies is conditioned upon a
state's compliance with Federal laws). That is, "Spending clause
legislation, when knowingly accepted by a fund recipient, imposes
enforceable, affirmative obligations upon the states." 294 F.3d at 808,
*citing* [Wheeler v. Barrera]{.underline}, 417 U.S. 402, 427 (1974),
*modified on another ground*, 422 U.S. 1004 (1975). "Once the conditions
and the funds are accepted, the school is indeed prohibited from
systematically releasing education records without consent." 294 F.3d at
809. .

As discussed above, local Michigan school boards violate FERPA to the
extent that they have a policy or practice of releasing or otherwise
making public board meeting minutes of a disciplinary proceeding that
contain the name of a student, a student number, or other personally
identifiable information, without the prior written consent of the
student's parent. Assuming for purposes of this determination that *all*
local school boards follow the Michigan Attorney General's 1980 opinion
in this matter, the resulting systemwide FERPA violation would also
constitute a breach of the assurances in the consolidated application
submitted by your agency to receive Federal funds. Accordingly, the
State

Page 4 -- Mr. Thomas D. Watkins

must ensure that all local school boards in Michigan comply with FERPA
regarding the release of personally identifiable student information in
board minutes so that the State may continue receiving Federal education
funds.

In achieving compliance with FERPA, there are a number of enforcement
options available to the Department, including withholding further
payments, issuing a cease and desist order, and recovering funds. See
enclosed copy of 34 CFR § 99.67 and 20 U.S.C. § 1234c. The court of
appeals in [Miami University]{.underline}, [supra,]{.underline} also
concluded that the United States has the inherent power to sue to
enforce conditions imposed under FERPA on the recipients of Federal
grants. [Miami University]{.underline}, 294 F.3d at 808.

However, this Office is committed to working with your office and with
local school boards to achieve voluntary compliance with FERPA. As part
of that effort, please report to me within 30 days of the date of this
letter on the steps your agency has taken, or will take, to ensure that
local school boards in Michigan comply with FERPA requirements as
described in this letter, or provide a statement explaining why you
believe this action is unwarranted. The address of this Office is as
follows:

Family Policy Compliance Office

Office of Innovation and Improvement

U.S. Department of Education

400 Maryland Avenue, S.W.

Washington, D.C. 20202-5901

We look forward to working with you to resolve this issue as
expeditiously as possible. Should you have any questions about the
assurance of compliance this Office is seeking, please do not hesitate
to contact me directly, or Ellen Campbell of my staff, at the address
noted above. Additionally, the telephone number of this Office is (202)
260-3887.

Sincerely,

LeRoy S. Rooker

Director

Family Policy Compliance Office

cc: Mr. Douglas L. Dinning, Esq.

Enclosure