BILL ANALYSIS Ó
SENATE COMMITTEE ON EDUCATION
Alan Lowenthal, Chair
2011-2012 Regular Session
BILL NO: AB 143
AUTHOR: Fuentes
AMENDED: April 6, 2011
FISCAL COMM: No HEARING DATE: June 22, 2011
URGENCY: No CONSULTANT:Lynn Lorber
NOTE: This bill has been referred to the Committees on
Education and
Judiciary. A "do pass" motion should include
referral to the Committee
on Judiciary.
SUBJECT : Access to pupil records.
SUMMARY
This bill adds to the list of people who may obtain a
pupil's school records, for specified purposes, a minor's
counsel of record and requires those in receipt of such
records to certify that the information shall not be
disclosed to another person.
BACKGROUND
Current law:
1) Prohibits a school district from permitting access to
pupil records to a person without parental consent or
under judicial order except to certain people for
specified purposes, including to a probation officer
or district attorney for the purposes of conducting a
criminal investigation, or an investigation in regards
to declaring a person a ward of the court or involving
a violation of a condition of probation.
(Education Code § 49076.)
2) Authorizes a school district to permit access to pupil
records to a person who has obtained from the pupil's
parent a written consent specifying the records to be
released and identifying the party or class to whom
the records may be released. The recipient of the
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records is to be notified that transmission of the
information to others without the written consent of
the parent is prohibited. (EC § 49075.)
3) Prohibits, pursuant to the federal Family Educational
Rights and Privacy Act (FERPA), federal funds from
being made available to any educational agency or
institution which has a policy or practice of
permitting the release of a pupil's educational
records to any individual, agency, or organization
without the written consent of the student's parents.
FERPA exempts from the general parental consent
requirement certain kinds of disclosures, including
disclosures to state and local authorities or
officials for the purposes of conducting a criminal
investigation or an investigation in regards to
declaring a person a ward of the court or involving a
violation of a condition of probation.
FERPA requires that the officials and authorities to whom
the records are released certify in writing that the
information is not disclosed to any other party
without the prior written consent of the parent.
(United States Code, Title 20, Section 1232g and Code
of Federal Regulations, Title 34, Sections 99.31 and
99.38)
4) Requires school districts to adopt a policy
identifying those categories of directory information
that may be released. The district is to determine
which individuals, officials, or organizations may
receive directory information. "Directory
information" is defined as one or more of the
following items:
a) Pupil's name.
b) Pupil's address.
c) Pupil's telephone number.
d) Date and place of pupil's birth.
e) Pupil's major field of study.
f) Participation by the pupil in officially
recognized activities and sports.
g) Weight and height of members of athletic
teams,
h) Pupil's dates of attendance.
i) Degrees and awards received by the pupil.
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j) Most recent previous public or private
school attended by the pupil. (EC § 49073 and §
49061)
ANALYSIS
This bill adds a minor's counsel of record to the list of
people who may obtain a pupil's school records, and
requires those in receipt of such records to certify that
the information shall not be disclosed to another person.
Specifically, this bill:
1) Requires a school district to permit access to pupil
records without parental consent or judicial order to
a counsel of record for a minor for the purposes of
conducting a criminal investigation or an
investigation in regards to declaring the minor a ward
of the court or involving a violation of a condition
of probation.
2) Deems a probation officer, district attorney and
counsel of record for a minor to be "local officials"
for purposes of the federal Family Educational Rights
and Privacy Act (FERPA). See Comment # 2 below.
3) Requires the officials and authorities to whom pupil
records are disclosed pursuant to this bill, and law
enforcement authorities, to certify in writing to the
school district that the information shall not be
disclosed to another party without the prior written
consent of the parent or education rights holder,
except as provided pursuant to FERPA.
4) Requires pupil records obtained by a probation
officer, district attorney or counsel of record for a
minor to be subject to specified evidentiary rules.
STAFF COMMENTS
1) Purpose of this bill . According to the author, the
exception that allows access to pupil records without
parental consent or judicial order to certain court
officers for specified purposes "limits access to
education records without parent consent to only two
of the three necessary juvenile court officers in
juvenile proceedings Minor's counsel is not provided
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equal access to these, often critical, records.
Minor's counsel often must petition the court for
access to these records, wasting valuable court time.
Arguably, minor's counsel should have the easiest and
most comprehensive access to these records, since they
are the one player in the juvenile justice system
whose sole charge is representing the best interest of
the minor. AB 143 will simply put minor's counsel on
equal footing with the other players in the juvenile
justice system and will reduce the need for costly,
unnecessary court hearings."
2) Family Educational Rights and Privacy Act (FERPA) and
local officials or authorities . FERPA provides
limited access to educational records in juvenile
justice matters to state and local "officials or
authorities" where the disclosure serves a legitimate
educational purpose and concerns the juvenile justice
system's ability to effectively serve the pupil. In
such cases, FERPA requires that the officials and
authorities to whom the records are released certify
in writing that the information is not disclosed to
any other party without the prior written consent of
the parent. However, federal regulations do not
define "official" or "authority" and do not establish
exactly what matters concerning juvenile justice would
qualify as legitimate purposes. This bill deems a
minor's counsel of record, as an officer of the court,
a local official in the same manner that existing
state law deems the district attorney and probation
officer a local official.
3) Author's amendments . The author wishes to amend this
bill to address situations where schools receive
requests for pupil records from people who are not
permitted access, such as the media. FERPA allows the
release of pupil's records, without parental consent,
if personally identifiable information is redacted.
The author wishes to include an additional amendment to
remove "place of birth" from the definition of
"directory information." (See #4 in Background)
4) Related legislation . AB 733 (Ma) makes several
changes to conform to FERPA. AB 733 is scheduled to
be heard on June 22 in this Committee.
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5) Previous legislation . AB 261 (Salas, 2009) would have
made several changes to conform to FERPA but was
vetoed by the Governor, whose veto message read:
While the stated intent of this bill is purported
to conform state special education law to changes
to the federal Individuals with Disabilities
Education Act, its provisions appear to expand
beyond federal requirements, and therefore could
expose the State to significant reimbursable
state mandate costs.
AB 2630 (Salas, 2008) was substantially similar to AB
261 from 2009. AB 2630 was vetoed with the same veto
message as was provided for AB 261 in 2009.
SUPPORT
American Federation of State, County and Municipal
Employees
California Federation of Teachers
Kern County Superintendent of Schools
OPPOSITION
None on file.