The following was included in TCTA's 2017-18 Survival Guide, the ultimate reference tool for Texas educators, and is current as of September 2017 but is subject to change. The information below is for information purposes only, and is not intended to substitute for advice from an attorney.

FERPA

The Family Educational Rights and Privacy Act (FERPA), applies to education agencies or institutions that receive federal funds. FERPA gives personnel designated by the district as having a “legitimate educational interest” the right to access and view student records without prior parental consent. In addition, for employees who have a legitimate educational interest in the behavior of a student, a district does not need consent to release information from discipline records arising from conduct that “posed a significant risk to the safety or well-being of that student, other students, or other members of the school community.”

District employees are charged with maintaining the strict confidentiality of student records and may release such information only with written consent of the parent, guardian or (in some cases) the student. FERPA establishes a penalty for violations of the law. A 2005 amendment to Chapter 26 of the Texas Education Code requires districts to annually notify parents of FERPA provisions relating to release of student directory information, such as name, address and phone number. Parents may elect not to disclose such information or limit such disclosure.

Closed school board meetings about students

A school district is not required to conduct a hearing in open session if it will disclose identifiable information about a student younger than 18. This prohibition does not apply if the student is 18 or older, or if the parents/guardians request an open hearing.

Testing

The laws regarding test security apply equally to state and local tests. Texas Education Code Sec. 39.030 makes a student’s state test scores confidential. They may be released only as permitted by FERPA. Public release of test information cannot contain the names of students or otherwise implicitly identify the students, but may contain information regarding ethnicity, grade, subject, etc. TEA prohibits encouraging or helping another person to breach test security, and requires reporting of known violations. A supervisor who gives directions inconsistent with the rules should be referred to the test administrator.

Peer grading 

In 2002, the U.S. Supreme Court decided Falvo v. Owasso ISD, a case in which a parent alleged that a teacher violated FERPA by permitting students to grade each other’s work and call out grades. The court unanimously held that peer grading did NOT violate FERPA, and praised the practice as a learning experience. The court also said it was not deciding whether a grade book is an educational record under FERPA.

Medical files

Under Sec. 38.009 of the Texas Education Code, a school administrator, nurse or teacher is entitled to access district student medical records for reasons established by district policy. A student cannot be required to undergo tests to determine a medical condition or status. Any person who views medical records must maintain the confidentiality of the records.

Parental rights under the Texas Education Code

Parents are entitled to: access their child’s records, including attendance records, test scores, grades, disciplinary records, health records, student evaluations and reports of behavioral patterns; review teaching materials, including textbooks and aids; and review each test the child takes after it is administered to the child’s class.

A 2002 Texas attorney general opinion addressed the question of whether a parent has unrestricted access to a child’s school counseling records. The opinion stated a very narrow exception to the general rule that all student records are available to parents. Under FERPA, a public school may withhold a minor child’s counseling records from a parent only if the records are kept in the sole possession of the counselor, are used only as the counselor’s personal memory aid, and are not accessible or revealed to any other person except a temporary substitute for the counselor. In addition to the FERPA standards, state law provides that a licensed mental health practitioner may withhold a minor child’s records only if the practitioner determines that the release of such records “would be harmful to the patient’s physical, mental, or emotional health.” According to the Texas attorney general, a licensed mental health practitioner includes a licensed professional counselor but not a school counselor certified by SBEC.

Situations requiring written consent of parent

A parent must consent in writing before a school employee may conduct a psychological examination, test or treatment (except with regard to investigation of child abuse), or make a video- or audiotape of a child (unless the recording is used only for purposes of safety and discipline, including student safety in special education settings, co- or extracurricular activities, purposes related to regular instruction, or media coverage of the school). A parent may remove a child temporarily from a class or activity that conflicts with religious or moral beliefs.

Student searches

Public school students are entitled to be free of unreasonable searches pursuant to the U.S. Constitution, although the standard for initiating a student search by school officials is less stringent than the probable cause requirement applicable to searches by law enforcement officials. School officials may search students if there is reasonable suspicion of finding evidence of wrongdoing. The scope of the search must be reasonably related to the objectives of the search and not be excessively intrusive in light of the student’s age and sex and the nature of the infraction. The U.S. Supreme Court approved the search of a student’s purse when the student was caught smoking and there was reasonable suspicion that the student’s purse contained cigarettes. In a 2009 opinion, the Supreme Court held that a search that required a female student to strip to her underwear and pull the garment away from her body to look for prescription strength ibuprofen was not reasonable. Due to the potential for civil rights liability, only trained administrators should conduct searches.

See also:

Parental Rights

Student Searches