BILL ANALYSIS Ó
AB 643
Page 1
Date of Hearing: April 17, 2013
ASSEMBLY COMMITTEE ON EDUCATION
Joan Buchanan, Chair
AB 643 (Stone) - As Amended: March 19, 2013
[Note: This bill is doubled referred to the Assembly Human
Services Committee and will be heard as it relates to issues
under its jurisdiction.]
SUBJECT : Pupil Records: Confidentiality
SUMMARY : Amends Education Code to conform to the federal
Uninterrupted Scholars Act of 2013. Specifically, this bill :
1)Creates an exception to the general rule that a school
district shall not permit access to pupil records without
written parental consent or under judicial order by
recognizing an agency caseworker or other representative of a
state or local child welfare agency, or tribal organization,
that has legal responsibility, in accordance with state law,
for the care and protection of the pupil.
2)Specifies that records, and the personally identifiable
information within, disclosed to a state or local child
welfare agency, or tribal organization, that has legal
responsibility for the care and protection of the pupil may be
disclosed by that agency or organization to an individual or
entity who is engaged in addressing the pupil's educational
needs and is authorized by that agency or organization to
receive the disclosure.
3)Eliminates the obligation of a school district to make a
reasonable effort to notify the parent or guardian in advance
of complying with a request for pupil records or the
personally identifiable information therein via a lawfully
issued subpoena when the subpoena is issued pursuant to a
court proceeding involving child abuse or neglect in which the
parent or legal guardian is a party.
4)Eliminates the obligation of a school district to make a
reasonable effort to notify the parent or guardian in advance
of complying with a request for pupil records or the
personally identifiable information therein via a court order
AB 643
Page 2
when the order is issued in the context of a dependency matter
in which the parent or legal guardian is a party.
5)Makes other technical, non-substantive changes to these
sections.
EXISTING LAW :
1)Protects, under the federal Family Educational Rights and
Privacy Act (FERPA) (20 U.S.C. § 1232g; 34 CFR Part 99) and
state law, the privacy of pupil education records by requiring
written permission from the parent or eligible student, with
specified exceptions, in order for a school district to
release any information from a student's education record.
2)Requires that when a school district discloses a pupil's
records or personally identifiable information pursuant to a
court order or lawfully issued subpoena, the school district
make a reasonable effort to notify the parent or guardian and
the pupil in advance of complying with the order.
3)Defines, in the United States Code "child abuse and neglect"
to mean, at a minimum, any recent act or failure to act on the
part of a parent or caretaker, which results in death, serious
physical or emotional harm, sexual abuse or exploitation, or
an act or failure to act which presents an imminent risk of
serious harm. (42 U.S.C. § 5101 (note)).
FISCAL EFFECT : This bill is keyed non-fiscal by the
Legislative Counsel.
COMMENTS : This bill updates California law to recognize the
exceptions created to FERPA by the federal Uninterrupted
Scholars Act of 2013. The language in this bill is
substantially similar, and in most instances identical, to the
language of the Uninterrupted Scholars Act of 2013.
According to advocates for foster youth, the Uninterrupted
Scholars Act of 2013, and in turn this bill will help to close
the academic achievement gap between children in foster care and
their peers by providing youth with the support they need to
avoid problems like inappropriate course placement and lost
credits upon changing schools. Specifically, it will allow
caseworkers to access transcripts and report cards for foster
youth while maintaining important privacy protections.
AB 643
Page 3
According to the author, prior to this law, FERPA
unintentionally created a harmful barrier that prevented child
welfare caseworkers with legal responsibility for foster
children from being able to quickly access the school records
necessary to help meet the educational needs of students in
foster care. This led to significant delays that contributed to
inappropriate course placements, enrollment delays, lost
credits, delayed graduation, and drop-outs. In fact, foster
youth sometimes had to repeat coursework they had already taken
because child welfare agencies have incorrect or limited
educational information. These youth also missed school for
extended periods of time while waiting for school records to
transfer when placed with a new caregiver. This bill allows
child welfare agencies access to the education records of
children within their care while also preserving the educational
privacy rights granted to students under current federal law. As
a result, the more than 56,000 foster youth in California will
now have additional tools for their advocates to ensure they are
immediately enrolled into school and have access to the
interventions they may need to succeed academically.
In order to facilitate the intent of this bill, while balancing
the privacy rights of pupils and the rights of parents and
guardians, the author may wish to consider continuing to work
with the Assembly Education Committee to ensure the
confidentiality of pupil records pursuant to the provisions of
this bill.
Section 2 of this bill raises significant issues the committee
may wish to consider. Under the proposed language excusing the
school district from the obligation to notify a parent or
guardian prior to disclosure of records pursuant to a court
order or subpoena as specified, there remains an obligation to
notify the student. And while the student is not a party to the
underlying action in this scenario and therefore his/her rights
are unchanged, it can be assumed that the pupil will often be an
alleged victim or subject of the underling action. Does such a
notification to the pupil offset the intended safety this
measure intends? Further, while this language specifies that the
school district need not notify the parent if the parent is a
party in the underlying action, is the school district similarly
relieved of its obligation to notify another parent or person
holding the educational rights if one is on record?
Additionally, when producing pupil records pursuant to a
AB 643
Page 4
subpoena or court order, the nature of the underlying action
will not be known to the school district. In the proposed
language, the school district will have a difficult time
ascertaining whether the exception to the requirement to notify
the parent is applicable. Finally, while this bill makes clear
that a school district is not required to notify the parent or
guardian prior to disclosure in these circumstances, is such a
disclosure permitted? Would such a disclosure pose a liability
to the school district? Therefore, staff recommends, section 2
be deleted from this bill.
Previous legislation : AB 733 (Ma) Chapter 388, Statutes of 2012,
made technical changes to this section in order to conform to
amendments to FERPA. This measure passed out of this committee
on a 10-0 vote.
AB 143 (Fuentes) Chapter 434, Statutes of 2011, revised pupil
privacy laws regarding release of records to legal counsel and
the re-release of pupil records.
AB 261 (Salas, 2009) and AB 2630 (Salas, 2007) were
substantially similar to AB 733. Although both bills were keyed
as non-fiscal, both were vetoed by Governor Schwarzenegger with
similar veto messages stating that the Department of Finance
claimed the bills would impose reimbursable mandates to schools.
REGISTERED SUPPORT / OPPOSITION :
Support
California Alliance of Child and Family Services
Children's Rights Project at Public Counsel
Legal Advocates for Children and Youth
National Center for Youth Law
Opposition
None on file
Analysis Prepared by : Jill Rice / ED. / (916) 319-2087
AB 643
Page 5