Family Educational Rights and Privacy Act (FERPA) for Early Childhood Providers

Editor’s note: This text-based course is an edited transcript of the webinar, Family Educational Rights and Privacy Act (FERPA) for Early Childhood Providers, presented by PJ Winters, EdD.

Learning Outcomes

After this course, participants will be able to:

• Identify the rights described in FERPA.
• List key components of the complaint process of FERPA.
• List ways this law will affect them when working with children in early childhood.

Introduction

Early childhood is most definitely one of my passions. I'm so glad to be able to talk to you about how this federal law relates to some practices that you may be doing or some things that you may be undertaking as an early childhood specialist. At least if nothing else, I hope it makes you think, maybe I need to research this before we go forward in certain requests. I do want to make a disclaimer that I am not an attorney. I am an informed educator who teaches this material to graduate students. This training is not a substitute for legal advice. 

What is FERPA?

Let's talk about FERPA, which stands for Federal Educational Rights and Privacy Act. It is a federal law that was passed in 1974. The law is an amendment that was added to the Elementary and Secondary Education Act of 1965 when it was re-authorized in 1974. The key point is because it was just added to another act and it was an amendment, it didn't get debated by itself on the floor of the Senate. When Congress re-authorized the act, it simply became law.

In order to understand why this law was needed, let's think about this scenario. It's 1970 and parents have approached a landlord wanting to rent a house. The parents told the landlord it would be them and their two teenage sons who attend the local high school living in the house. Before he makes a decision about this, the landlord decides to go to the local high school. He walks in the door and says to the secretary, "Hey, I'm just curious. I've got this couple that wants to rent a house and I know they have boys that attend your school. I would like to see their disciplinary records just to see what kind of boys they are and see if I really want to rent this house to them." This could have been a small town back when things were overlooked and the secretary said, "No problem. I know you. You and I attended the same Sunday school class." So she pulled up the boys' disciplinary records and let this potential landlord see them so that he could base part of his decision on that. In 1970 that easily could have happened and there would have been no recourse.

This leads to the purpose of this act. It was designed to protect student records, mainly from prying eyes. Let's consider another scenario. The parent of a child comes to school. The parent wants to see the child's academic records during high school. The campus could decide not to let the parent see the material. For example, maybe the principal and the parent had words at a football game the week prior so the principal said, "No, I'm not going to give you those records." 

FERPA prevents all of that from happening. It requires the school to show the parent or the eligible student the record. An eligible student is anyone that has turned 18 years of age and is legally an adult. They get the rights to their records at 18. I will probably just refer to parents throughout the course, but always know when I say parents, it also means an 18-year-old student. We're talking about early childhood students today so it's really going to be the parents of those kids. 

Who Must Follow FERPA?

Who does this federal law affect? There are two criteria that an organization must meet in order to fall under FERPA. First, the organization must provide some sort of educational service. Second, they must receive certain types of funding from the US Department of Education. If they receive that funding, then they meet the second criteria. That includes all public school districts, all universities, and most private universities.

What we really have to think about in early childhood education is things like licensed pre-schools and licensed daycare centers. While a lot of those places may provide an educational service, it's about receiving a certain type of funding from the US Department of Education. If you work for a public school district, university, or Head Start even, it's important to know if you receive the funding that triggers them to be under FERPA law. You would want to ask your administrators, "Do we receive any funding from the US Department of Education?"

Parent Rights

The big piece about FERPA is it gives parents the right to do many things. The first thing is to inspect and review the student's education records. They have the right to request that the school correct records they believe to be inaccurate. For example, a parent comes up says, "Hey, I'd like to look at my child's academic records from fourth grade. It says in there that he made a D in math in the second semester but he made a B in math the second semester. I'd like that corrected." Under FERPA, parents have the right to request this.

FERPA also gives parents the ability to restrict the release of personally identifiable information, which is crucial. We'll talk about that later on when we detail some of this. Parents have the right to give permission before the school releases some records. They can't just give records out to future landlords or anyone else. They've got to get permission from parents in order to do that. Parents have a right to be given a copy of a school's policy regarding access to educational records. Every school that falls under FERPA should have a policy in place about what they do in order to keep records safe and what records they release. That's a right that parents be given a copy of that, or it may be made available to parents on a website. Under FERPA, parents also have the right to file a complaint with the United States Department of Education, should something go awry.  

Inspect and Review 

Parents have the right to inspect and review the records created and maintained by the school for their child. Schools are not required to provide copies of these records and schools have 45 days to comply with the requests for inspection. If a parent or an eligible student is circumstantially unable to exercise the right to review the records, then the school must provide copies of the records or otherwise make arrangements for them to inspect the records. 

While the law says that they're not required to provide copies, it also says if they are circumstantially unavailable. That means there is some circumstance that does not allow them to be able to come to the school and view those records. Here is an example. When I was a principal, I had a non-custodial parent who lived out of state and in a different time zone. He lived on the East Coast and I'm in the center of the country in Texas. He would call us every grading period and request that a copy of his child's report card be sent to him. In the state of Texas, non-custodial parents have access to those records. 

FERPA doesn't say that they don't, so barring a judge's order that says this parent doesn't have access to his child's educational records, I had to make a way for him to view that record either through some secure online version or I had to stick a copy in snail mail to him in order for him to be able to view those records. That would be an example of how circumstances didn't allow for the parent to come up to the school and view the record. Schools cannot charge a search fee. For example, if you were to go up to a school and want to see a copy of your child's record, they can't charge you a fee just to search for the record. However, if they have to make copies, the law does allow for a small fee to be charged for copying. 

What is a Record?

We've talked about records and I've alluded to academic records and discipline records. The term record refers to any record that the school maintains with that child's name on it. That's a key point to this whole law is that the school maintains the record. If it's something that has your child's name on it, or the name of one of your students and the school maintains it, it is a record. A record is not a personal note that a teacher may have on a post-it beside the computer that says, "I need to check Jenny's AR level on this date." That's not a record. That is simply a reminder note to be able to remember to do something. Another example is a personal note back and forth between faculty members. That's not maintained by the school unless you are using it to start making decisions about the student, and then it can become a record.

Most law enforcement records do not fall under FERPA. Again, the thing that we're looking for here is did the school maintain the record? If law enforcement maintains the record they do not fall under FERPA. For example, if the police came to the school to do an investigation on one of your kids and took notes during their investigation and those notes go back to the police station with them then they aren't records. Those are not educational records and they do not fall under FERPA. Yes, they're police records, but you can't give access to those under FERPA. 

If a school police officer does an investigation and takes notes and the school maintains a record of that, like the principal's office, then that does become a record. That's why we say most law enforcement records and employee records are not a record under FERPA. You can't call up and say, "Hey, I want to see my son's teacher's last evaluation." If the teacher doesn't want to share that with you, they don't have to because it does not fall under FERPA. 

Example - Susie Speech Therapist

Here's a scenario to help you think about some of the things that I've talked about. 

Mr. Ramirez, a kindergarten teacher, sees Susie in the hallway. He asks if she isn't busy later if she would stop by and have a brief conversation with one of his students, Kylie Kindergartner, to see if she believes she would benefit from a referral from speech. Later, Susie happens to see Mr. Ramirez and his class in the hallway. He shows Susie the student and Susie bends down and has a very brief conversation with Kylie. Susie then pulls Mr. Ramirez aside and said she would wait as it seems at first glance, this is developmentally appropriate speech. The next time Mr. Ramirez speaks with Kylie's mom he mentions this interaction with her. She is furious and demands to see all records related to the speech referral. Because there was no record created, has a FERPA violation occurred?

Take a moment to think about that and then we'll talk about it. 

There has not been a FERPA violation. Yes, a teacher that is not Kylie's teacher or a therapist at this point has come in and has looked at Kylie. Mr. Ramirez did say to her, I'm concerned about whether or not she has a speech problem, but there's no record surrounding this. He didn't break FERPA and neither did Susie. This is not a FERPA violation.

Correcting Inaccurate Records

Parents have the right to request the correction of a record they think is false or misleading. The interesting piece about this is it says that parents have the right to request. It does not say anything about the school having a right or the parent having a right to force the school to change the record. In fact, schools can disagree with the parent and avoid altering records that they believe are correct. Parents can still add a notation to the record stating they disagree with the decision. They can even file a complaint with the US Department of Education because as we know, that's a right guaranteed by FERPA. Again, there's nothing that says the school has to change the record if the school does not want to. Also, if a parent requests the record to be changed and the school denies the request, the parent actually has a right to a hearing at the school. This is not a court hearing where you go down in front of the judge to have the judge decide it. This is a formal hearing at the district level to see if they can review the facts of the case to see if it merits being changed. 

Directory Information 

Schools get to designate what they consider to be directory information. Some items a school can give out without parent permission include:

• Student name
• Address
• Phone number
• Date and place of birth
• Honors and awards
• Dates of attendance
• Participation in any school-sponsored extracurricular activities
• Height and weight of student-athletes
• Photographs
• Email addresses 

Schools can designate any of that information as directory information and by doing so, they have the right to release that information without parental permission. Having said that, parents do have the right to opt out of the school being able to give out the directory information. Schools have to inform the parents of what they consider directory information and how they can opt out of the school giving that information away. This doesn't really involve early childhood, but military recruiters are exempt from that. Upon request, schools are supposed to be able to provide that information to them, but even so, parents have an opportunity to opt out of that, but they have to opt out of that specifically. 

Non-Directory Information

We covered all of those different things schools can give out if they listed them as directory information, but what about non-directory information? Generally, parents must give permission in writing for the school to disclose any other records regarding their child. However, even though that's the rule, there are many exceptions to that rule. I'm going to walk you through some of those.

Education records may be disclosed to school officials within a school, such as teachers who have a legitimate educational interest in the information. It's the school's responsibility to determine when there is a legitimate educational interest. For example, if a teacher is concerned about a student's performance and has that student in class, that teacher can go and pull the student's cumulative file and look at that information. 

Let's say that we are teachers in a Head Start program and we have a three-year-old Head Start program and a four-year-old Head Start program in our school. You are the four-year-old Head Start teacher. You have a precious young girl in your classroom who has made tremendous growth. The three-year-old Head Start teacher who taught her last year absolutely loved the girl and her family and wants to have a conversation with you about her growth and how much she has improved. That's really not an educational interest. That's only a personal interest because she formed an attachment to that three-year-old when she was in her classroom. That can be protected information. We have to be very careful that we have an educational need to know the information we access, not just a curiosity need.

Having worked on an early childhood campus before, it is very easy to blur those lines because we as early childhood educators tend to think of everyone as our kids. We would see kids in the hall and talk to them and develop relationships with them. But we have to remember that the information about them is protected information. If we don't have an educational need to know that information, we could be violating FERPA by accessing that information if the parent doesn't give us access to it.

Education records may be disclosed to another school or school district where the student is planning to enroll. For example, if you have a child in your classroom and a school sends over information that this child is trying to enroll in their school, the school does not have to get permission from the parents to send the child's academic and discipline records to the new school where they are enrolling. In the state of Texas, if it is a public school that falls under the Texas education agency, they have secure methods of requesting that information so that we can ensure someone with a rogue email address isn't trying to get information from schools. Education records can be disclosed to the comptroller general of the United States, the attorney general of the United States, the secretary of the United States Department of Education, or other state or local authorities for the purposes of audit or evaluation. 

I highly doubt you as an early childhood educator are going to have to worry about the comptroller general of the United States calling you personally and asking for information about a child in your class. They would probably deal with your district-level administrators for that sort of thing, if not somebody at the state level. Your administration should handle those things for you, but just know that those can be asked for.

Education records may be disclosed to state or local officials or authorities within a juvenile justice system, as long as it is made pursuant to state law. If you know there's a child that is having to enter the juvenile justice system for whatever reason, then FERPA allows for the school to send those records on without parental permission. If there is an organization that has been hired by the district or the center to come and do studies, or any educational agencies for the development of predictive tests or student aid programs, then we can release information to those organizations as well without parent permission. But they are only allowed to have those records as long as they are doing the study, and once the study is complete they have to destroy all of those educational records. 

Education records may be disclosed to accrediting organizations. I know that Head Start has to go through a grant writing process every so often. I had the joyous occasion of having Head Start on-site visitors from Washington come to my campus when I was a Head Start principal. Yes, we can give them access to all of that information. They are accrediting us to serve students in their program. We do not have to have parental permission. They can come and view our classrooms without a lot of red tape for them to go through. 

Education records may be disclosed in connection with a health or safety emergency. For example, they may have considered the pandemic that we've just been through in 2020 as a health or safety emergency. There may have been some release of records that were allowed, had there been a need to be. If there's a big outbreak of something and we have to release those records we're protected under FERPA.

One that you're going to run into most often is compliance with a court order. A lot of times you will get a court order from a parent that has brought it up and said, here are the new orders related to what my child can and cannot do with my former spouse, or former boyfriend, or girlfriend, or whomever. We have to follow what is in there, but we have to make a reasonable effort to provide notice to parents that we are following said order.

If the court comes to us and says, "Hey, we would like to see this student's educational records. Here's a subpoena." then we have to give them that information as well. Again, we have to try and notify the parents. All of that's going to be done on an administrative level most of the time, but you might have a direction from your administrator to simply send those directly on. If you do, you need to know that you've got to make reasonable efforts to tell the parent you're about to do this. Again, you need to loop your building administrator into that conversation before you do that.

In addition, we talked about the rights that are associated with these records. One of the rights was that parents had to receive notice of the policy each year. We're required to notify parents and eligible students annually of their rights under FERPA. It can take any form that the institution considers appropriate, such as on a website, in a flyer, in a note sent home to parents, or through a link in a text message. However it is done, it must show the parent how they can exercise their right to review that record and how they can correct inaccurate, misleading, or privacy-violating information in the record. Parents also have to give consent to disclose the directory information that includes a student's personally identifiable information and how to file a complaint concerning the failure of a school to comply with FERPA's requirements.

Once you have sent all this information out and received the forms back stating whether or not the parents agree or disagree with releasing their child's directory information you have to maintain that list. For example, in your class of 20 students, 18 parents said, "No, you're fine. You can release all that information." But two have not. You have to maintain that list. Your school may want to do that at the district level, but it's also going to be important that you know which two students in your class the parents have not released directory information for. We're going to talk a little bit about how that affects you as a teacher later on in this course. It's so important for you to know as the teacher in charge who has given permission for this and who has not because the littlest thing that you wouldn't think about could possibly be a FERPA violation. 

Example - Helen the Head Start Teacher

Here's another scenario. 

Helen is a teacher in a free-standing Head Start that is not affiliated with a school district. Helen sees Fannie the four-year-old's dad in the supermarket one day. Helen knows that this dad is a non-custodial parent and has only supervised visitation rights with Fanny. He asks about Fanny's progress in school. Is it a FERPA violation to give him this information?

Take a moment to think about that.

No, this is not a FERPA violation because Helen knows this parent and knows that he's the non-custodial parent. Nowhere in this scenario did it say that there was a court order that said that he couldn't have access to this information. As long as Helen knows all of those things, Helen can stand there and talk to the dad about Fannie. 

As a supervisor, I would say, "Why do that at the grocery store? Make him come to the school." You're trying to take care of your family on non-work time, but that's not a FERPA issue. The FERPA issue says as long as Helen knows that he's the parent, even if he's the non-custodial parent and there's no court order saying she can't do it, then she is allowed to give that information to him.

Filing a Complaint

Let's talk about complaints. You or someone else made a mistake and now a parent wants to file a complaint with the US Department of Education. They have a right to do that. The interesting thing about this is there is a 180-day filing deadline. That's a long time. That means a violation could have happened in April and then in September, a parent decides to go ahead and file that complaint. The child has probably already moved on from your classroom. You haven't thought anything about it and now all of a sudden, the US Department of Education is involved.

Filing the complaint must occur within 180 days from when the parent knew or reasonably should have known that something occurred. After a complaint is received, then the US Department of Education will notify the school and the student's parent in writing if it initiates an investigation of the complaint. The notice to the school includes the substance of the alleged violation and asks the school to submit a written response to the complaint. The US Department of Education will notify the parent if it does not initiate an investigation of a complaint because the complaint is untimely or otherwise defective. If the US Department of Education initiates an investigation, it may permit the parties to submit further written or oral arguments or other information. There is no deadline under FERPA for processing those complaints. There's a deadline for filing, but not a deadline for dealing with it or investigating it. The US Department of Education will provide to both the parent and the school written notice of its findings and the basis for its findings. 

If the US Department of Education finds that the school has violated FERPA, it will include in its findings a statement of the specific steps the school must take to comply and provide a reasonable period of time during which the school may voluntarily comply. However, if the school does not comply during that time period set out then the secretary of the Department of Education may withhold payments to the school under any applicable federal program. They could issue a complaint to compel compliance through a cease and desist order or they could terminate the school's eligibility to receive federal funding. If the secretary finds that an educational agency or institution has complied voluntarily, the secretary will provide the complainant and the school written notice of the decision and its basis for the decision. 

If you happen to be in a situation where a parent has filed a complaint to the US Department of Education and they've said, "You're in violation. Here's what we want you to do to comply" it sounds like it would be in your best interest to comply with what they want you to comply with rather than fight them. I know I wouldn't want to risk losing any federal funding, especially if it's quite a bit to help me run my school. Another big piece about filing a complaint is that it does not have to be filed by the parent. The eligible student, advocate of a student, or an attorney acting on the party's behalf can also file the complaint. Many people can get involved should they need to, but ultimately it's the parent's decision. 

How to File a Complaint

To file a complaint, the parents have to submit it in writing. It should include just the facts about the case. The different resolutions include dismissal of the complaint, initiating formal remediation or resolution, or initiating a formal investigation. If violations were found results could be anything from asking you to comply all the way up to losing lots of federal funding.

Reasons Complaints Are Filed

There are a few typical reasons a complaint is filed. One is if a student's personally identifiable information was disclosed without permission. For example, if a child's parents opted out of all directory information and said not to send their email address or phone number out anywhere and all of a sudden someone is emailing the parents from the information they got from the school then their personally identifiable information was disclosed without permission. It could be that the parent got an email or a phone call. Hopefully, no one showed up at the parent's door, but that could be a reason for filing a complaint.

Another reason for filing a complaint is parents were wrongfully denied access to records. If a parent requested a record and the school was not able to produce the record or they said, no, you can't see this record, then they were wrongfully denied. A third reason to file a complaint is when the request for inaccurate information to be amended was denied. For example, if a parent found something that they didn't like in the record and said, "Hey, I don't think this is correct" and the school said, "Well, we do. We're denying your request." it could go to the US Department of Education as well. It's important to note that the US Department of Education's website talks about how they want all these things to be solved at the district level or the school level. They don't want to get involved. However, if it cannot get resolved at the district or school level they will get involved. 

Example - Audrey the Aunt

Here's another scenario to look at.

Lilliana is a child in your first-grade classroom. She is staying with her Aunt Audrey while her mother and father are on vacation in the Netherlands. It has been determined that Lilliana needs some Tier III intervention in reading. Your school requires a parent conference before moving a child to Tier III reading intervention. Lilliana's aunt attends the meeting. Is this a violation of FERPA?

Take a moment to think about the answer.

This is a big maybe. This might be a FERPA violation. Some parents who go overseas for a vacation or for work may have legal documentation that says another person is standing in loco parentis. However, absent of that, if you have no communication from the parent that says that this person is allowed access to the child's educational records, that can be a FERPA violation. It all depends on what communication you have with the parent. If you have the parent's email address and a phone number on file you can call and get explicit permission to have this meeting with Audrey the aunt. If you do that, Audrey can come and there's no FERPA violation. Even though she is not the parent, the parent gave permission. That's the key there. As long as we have permission from the parent, we can do it and not worry about a FERPA violation.

Responsibilities As an Early Childhood Educator

Let's talk about your responsibilities as an early childhood educator. Your first responsibility is accurate record keeping. I cannot stress enough how important it is for teachers to keep accurate records and to make sure they're maintaining those records well. One of the reasons that complaints get filed is inaccurate information that the school refuses to correct. As a building-level administrator, I always took faith in my teacher's ability to keep accurate records, unless they showed me they couldn't. For example, if I had gotten a complaint from a parent that said, "Hey, I don't think this is correct" then I would generally lean on what the teacher tells me is correct, because they've said, "Hey, here's what we've got." It's so important that you keep accurate records and that you maintain those accurate records.

A second responsibility you have is to be very careful about disclosure because disclosing information about a student to other people that do not have an educational interest is a FERPA violation. Like I said earlier, we have a tendency to be far looser in early childhood settings where we will talk to our colleagues about our students. Those are FERPA violations. You can't just sit around in a teacher's lounge and talk about a child's evaluation results or other educational information because you're giving information to people that don't have an educational interest in the child.

Special Circumstances

In early childhood, videos, pictures, and social media are important to people. If I have learned one thing about early childhood educators, they love to take pictures of their babies. Many of them love to post pictures of their babies. Is that a FERPA violation? I'm going to walk you through some of this. 

As with any other educational record, a photo or a video of a student is an education record but is subject to specific exclusions. These exclusions include two criteria. The first is whether or not the photo or video is directly related to a student. The second is if it is maintained by an educational agency or institution, or by a party acting for the agency or institution. If those two criteria are met, that it is maintained by the institution and directly related to a student, it is a record.

The fun part about that wording and that law is the phrase "directly related to a student" because it does not define when a photo or video is directly related to a student. Let's unpack that a little bit. In the context of photos and videos, determining if a visual representation of a student is directly related to a student rather than just incidentally related to him or her is going to be context specific. We have to examine our photos and videos on a case by case basis to determine if they directly relate to any of the students depicted.

Here are some things we have to think about. Number one, is there a photo or video that we're using for disciplinary action involving the student? If there will be a disciplinary action or the victim is in the photo, then that could be an educational record because we're about to create a record based on the information in that photo or video. If the photo or video contains a depiction of activity it can be considered a record if it's in violation of local, state, or federal law. For example, if it shows that there's some sort of law violation or shows the student getting injured, attacked, or even a student being ill.

This doesn't necessarily relate to early childhood, but I think about how so often in secondary schools you will see something happening in the school, and students will pull their phone out and start to video it. A student being ill or a student having a health emergency can be a school record if they are happening and we're maintaining those records. 

Here's the thing that I think is going to affect you the most. If the person taking the photo intends to make a specific student the focus of the video or the photo then yes, that's going to be directly related to a student. Also, if there is otherwise personally identifiable information contained in that photo it's directly related to a student.

Here are some examples of things that I would think would not be directly related to a student. You are on a field trip at the pumpkin patch and put your whole class on the hay bales with parents and helpers around them. A picture was taken of all of them and no one or two people are the specific focus of that photograph. What you do have to be careful about is any parents that opted out of the directory information. Remember, earlier I said you have a class of 20 students and 18 of those parents said, absolutely, you can give away my directory information. Two parents said, "Not a chance." They can't appear in your picture if you're going to post it or if you're going to put it in the yearbook." You've got to make sure that you're looking at pictures to ensure people can't tell that that's who those children are in those pictures.

Here's another example. Let's say there's a program at school, such as a Christmas or spring program, and you have students on the stage and you've taken several pictures. If there are two or three or four students in those pictures, then yes, they are directly related. But if it's the whole cast, they're not directly related to one student. 

Let's talk a little bit more about videos. School surveillance videos can be tricky because oftentimes they include more than one student in the video. As a parent, I have a right to view my child's educational record. If that video shows my child engaged in an activity and the video is maintained by the school, that's a record that I have a right to see. But wait a minute, there's another kid in that video whose record I don't have a right to. That's the key piece there. It has to do with being made aware of is the term that they use. Yes, with the other parent's permission, I can view that video, but the school can also simply make me aware of what's happening in that video. The school can create a record. We've viewed the video and here is what is occurring in the video. In the record that I'm creating, I can say PJ Winters was doing this with another student and I don't have to name that student. Then we have the content of the video without the parent actually having seen it. In those sorts of cases, because many times parents won't believe it if they can't see the video, I would have two or three people watch that video and sign off that, "Yes, this record is accurate."

That's how our special circumstances with social media and videos and pictures with early childhood play into this. You've just got to be aware if you are taking the time to post things and take pictures of your classes, this could be problematic if you're not careful.  

Example - Kerri the Kindergarten Teacher

Kerri the kindergarten teacher has taken a field trip with her students to the pumpkin patch this fall. She gathered all her students around the hay bales, took a picture of the class, and then posted the picture on social media. Has Kerri just violated FERPA?

You can take a moment to think about it, but I bet you don't need to because we talked about this already. Kerri probably has not violated FERPA. There's no focus on just one or two children. As long as there are no students in the picture whose parents have opted out of directory information or you can't see them, and there's no policy by your school that says you can't post on social media, then you can do that without a FERPA violation. You've really got to ensure that it's everybody in the class and not just three or four students. 

Example - Yolanda the Yearbook Sponsor

Yolanda is the yearbook sponsor for Happy Meadow Elementary. She went to the second-grade field day to watch students play soccer. She took a great photo of two students running for a loose ball. She wants to include this photograph in the yearbook this year and uploads the photo to her school computer. A parent of one of the students has heard tell of this photo and requests to come to the school and see it. Yolanda likes keeping yearbook photos a surprise. Does she have to comply with the request under FERPA?

Take a moment to think about this.

This is another one that's a big maybe. She might have to comply with this request, but because there's another student in the picture she may have to get the permission of the other parent if that parent has opted out of directory information. If that parent did not opt-out then that photo should be okay for her to view. Since she uploaded it to her school computer and she kept it, it's a record. Even though she likes to keep it a surprise, she really doesn't have too much of an option.

I have a few more scenarios that we're going to get to, but I want to clarify one point that may be a little bit confusing when it comes to posting the photographs, because yes, a child's likeness may be considered directory information. There may not be a FERPA violation if you post a picture with just one or two students in it. My best advice to you is to err on the side of caution. If you're going to post pictures, make sure you have secured permission from parents that have opted out of directory information so that you can ensure that there's no FERPA violation whatsoever. Make sure you know what your school considers directory information. If a child's likeness is not included in directory information, then you have to get permission from those parents. 

Example - Sean the Second Grade Teacher

Sean's students have just completed a unit on being environmentally friendly. He is so proud of their work as they've all done very good work on the unit. He decides to post some of that work of his students on the bulletin board outside his classroom showcasing their best work. Does doing so violate FERPA?

Take a moment to consider this.

If there is a grade on that work, then yes that could be a violation of FERPA because theoretically that grade has gone into some sort of grade book and everybody that walks by that board can see the grade and the work. There are names on that bulletin board as well. There could be any number of people that walk by that bulletin board including parents who have opted out of directory information.

I know that early childhood people love bulletin boards. Most of mine did. They like to post the cute things that their children do, but you've got to be very aware of personally identifiable information posted and whether or not it's a school record. That can get you into a FERPA violation and it doesn't take much, just a mad parent walking down the hall who sees their child's 92 posted up against scores of 100 on this bulletin board who didn't give permission to post their child's grades. You've got to be very careful about that.

Example - Annie the Administrator

Annie's teams at her school meet weekly in a data room to discuss where their students are academically and what strategies they need to use in order to best help the students that are struggling, particularly with reading skills in the early grades. Results from all teachers and the latest common assessments are posted in the room so that all teams have immediate access to data. The only people that have access to the room are school administrators, counselors, and teachers. Has the school violated FERPA by having these scores posted on the wall? 

Take a moment to think about this.

This one is always very interesting to me because we talk about whether or not people accessing the information have an educational interest and do they need to know the information. I believe that an argument can be made that let's say the first-grade team is meeting in the room and they are accessing first-grade information. Even if that child is not in your room, it might be helpful for you to help other children to be able to look at how another teacher is doing and how growth is being made. There may be an educational interest. But for sure, those things shouldn't be posted for second, third, or kindergarten teachers to look at when they're in the data room. 

You've got to be careful about posting individual child's names. We can post all day long how Ms. Simmons's class did as a whole.  You might post their average score on the last common assessment that was done. Before that, did we see growth in all of her students? We can replace student names with non-identifying numbers that we would have to reference our list with and say, "Student number 15 in Ms. Simmons's class." We can leave that data up all day long. The issue comes in when names are attached to that. Then that's an educational record for that specific child. 

Review

Today we have covered some rights that parents have under FERPA including the right to inspect records, the right to have the school correct records that are incorrect, and the right to file complaints. We've talked about the complaint processes that parents have to go through, submitting them in writing within 180 days. The US Department of Education has as many days as they want to investigate and explain. 

We've talked about your responsibilities as an early childhood educator and how to protect records that you might not have even thought about, such as putting grades on a bulletin board or posting things on social media. We've given you lots of examples for those. We also talked a little bit about special circumstances that might pop up in dealing with social media, videos, and photos. 

Questions and Answers

If a childcare classroom or a program has an individual Facebook group just for their classroom of students, is it okay to post a picture of one or two or three children versus the entire group?

Yes, as long as parents have given permission for that to occur. All that would take would be just a quick little written form or a Google Form where they can say, "Hey, this is what I'm planning to do. I'd like to invite you to this group. Do I have permission to post pictures of your child in this group?" That will cover you as long as the parents said, "Yes." Then you don't have to worry about that.

You talked about hanging children's work with grades on it, but can you hang crafts or artwork that they've done that has their name on it? Is that okay or does that violate FERPA because it has their name?

It only violates FERPA if the parent has opted out of the directory information. If the parent did opt out of the directory information, the child's name cannot be on anything that is posted or hung up.

References