Jan 19, 2023

The Effect of FERPA on the Discovery Process in Civil Litigation

Written by: Casey B. Wendling 

The Family Educational and Privacy Rights Act (“FERPA”), codified at 20 U.S.C.A. § 1232g, is the primary federal law governing educational records. Congress enacted FERPA to “protect [parents’ and students’] rights to privacy by limiting the transferability of their records without their consent.” To achieve this goal, FERPA prohibits educational institutions from disclosing the educational records of students (defined very broadly as any documents that contain information directly related to a student and maintained by an educational institution) without sufficient authorization and enforces these restrictions by threatening to withhold the educational institutions’ federal funding for violations of FERPA.

Although FERPA does not create an “evidentiary privilege” per se, FERPA significantly impacts an educational institution’s ability to respond to requests for documents in the context of civil litigation when a party requests educational records.

FERPA sets forth several requirements that the educational institution must satisfy prior to producing educational documents to other parties. Specifically, an educational institution may not disclose an educational record to anyone unless and until: (a) there is written consent from the student's parent specifying the records to be released, or (b) a court orders the disclosure of specific educational records, upon condition that all involved parents and students are notified of such an order in advance of the educational institution’s compliance therewith. 20 U.S.C.A. § 1232g(b)(2)(A)–(B).

Courts have recognized that “documents covered by FERPA [may be] discoverable in the context of a civil action” when they are relevant and responsive to Requests for Production. Garza v. Scott & White Mem’l Hosp., 234 F.R.D. 617, 624 (W.D. Tex. Nov. 14, 2005). Therefore, the majority of Courts conduct in camera inspections to determine whether the challenged documents fall under the procedural protections of FERPA prior to ordering their disclosure to the requesting party.

An educational institution’s ability to respond to requests for documents is further complicated when the request is for educational records involving more than one student. Under FERPA, parents may only inspect and review their own child’s education records. 34 C.F.R. § 99.10(a) and 34 C.F.R. § 300.613(a). However, when the education records of their student contain information about other students, the parents may inspect and review only the specific information about their child. 34 C.F.R. § 99.12(a) and 34 C.F.R. § 300.615. This restriction requires the educational institution to carefully review all records requested and redact extraneous information when possible.

The U.S. Department of Education’s Office of the Chief Privacy Officer (CPO) has specifically addressed the disclosure of education records under FERPA in the context of a multi-student disciplinary incident in a 2017 letter to Wachter. The question arose from a situation that involved six students hazing two other students. A surveillance camera captured a video showing four of the perpetrators taking the two victims into the wrestling room where the incident occurred while the other two perpetrators remained in the hallway as “lookouts.” The district also collected witness statements as part of its investigation; these statements were used to discipline the students involved in the hazing. The district received a request from a parent of one of the disciplined students to review a copy of the video and witness statements. The district indicated that it did not have the ability to blur the images of the other students shown on the video and could not afford to purchase software to perform the task. The district asked if it could release the un-redacted video and witness statements to the parent without obtaining consent from the others. The CPO responded as follows:

  • The video and witness statements are education records of all the students who were disciplined as a result of the incident.
  • The video and witness statements are education records of the victims of the hazing incident.
  • The parents of these students have a right to view these education records, subject to the following conditions: (1) if the videos and witness statements contain personally identifiable information (PII) about other students, that information must be redacted or segregated before the viewing if that can be accomplished “without destroying its meaning,” and (2) if the PII about other students cannot be redacted or segregated without destroying its meaning, then the parents/eligible students must be allowed to access/review the un-redacted record.

Wachter concluded that FERPA did not require the school district to provide copies to the parents/eligible students unless failing to do so would effectively deny them their right to inspect and review the records. Further, under FERPA, an education agency cannot provide one parent with access to education records that directly relate to two or more students unless the parents of the other children give written consent. See Letter re: Regional Multicultural Magnet Sch. Dist., 108 LRP 29577 (FPCO 2008); A.B. v. Clarke Co. Sch. Dist., 54 IDELR 146 (11th Cir. 2010 (unpublished); and Letter to Anonymous, 113 LRP 14615 (FPCO 2013).

As a result of the various requirements and restrictions set forth by FERPA, an attorney representing an educational institution must be familiar with the conditions of FERPA and understand how to abide by all of the requirements set forth in the statute in order to effectively protect parents’ and students’ rights to privacy and the institutions’ receipt of federal funding, despite the fact that abiding by such requirements may cause complications and delay in the discovery process in civil litigation.