BILL ANALYSIS
AB 261
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Date of Hearing: March 18, 2009
ASSEMBLY COMMITTEE ON EDUCATION
Julia Brownley, Chair
AB 261 (Salas) - As Introduced: February 11, 2009
[This bill is double referred to the Assembly Judiciary
Committee and will be heard as it relates to the issues under
its jurisdiction]
SUBJECT : Pupil records: privacy rights
SUMMARY : Amends the California Education Code to conform with
the federal Family Education Rights and Privacy Act (FERPA)
requirements relating to the confidentiality of pupil records.
Specifically, this bill :
1)Changes the exceptions to the prohibition on a school district
providing access to pupil record information to the extent
this is in accordance with federal statute and regulation, and
provides an exception for state and local officials to whom
information may be reported or disclosed pursuant to state
law.
2)Clarifies exceptions to this prohibition with respect to
agents of the juvenile justice system for the purposes of
truancy mediation, juvenile adjudication, and reviewing
compliance with compulsory education requirements.
3)Restricts the authority of a school district to release pupil
record information to a county elections official for the
purpose of identifying eligible voters to only those pupils
who have not opted out (or not been opted out by a parent) of
this activity.
4)Limits the authority of a school district to release pupil
record information within the educational agency to only those
individuals who have a legitimate educational interest as
defined by federal law.
5)Authorizes a school district or county office of education to
participate in an interagency data system, maintained by a
non-educational, governmental agency and accessible to
authorized school officials, as long as specified conditions,
including non-disclosure of information, are met.
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6)Limits the release of pupil record information to a designated
peace officer or law enforcement agency to those situations
where prior written parental permission has been obtained,
where the health and safety of the pupil is at immediate risk,
or where a lawfully issued subpoena or court order has been
obtained.
EXISTING LAW prohibits a school district from providing or
permitting access to pupil record information without written
parental consent or a lawfully issued judicial order, except as
specifically provided.
FISCAL EFFECT : This bill is keyed non-fiscal.
COMMENTS : Under the previous (1997) authorization of the
Individuals with Disabilities Education Act (IDEA), states were
required to prove compliance through submission of a copy of
state policies and procedures to the Office of Special Education
Programs in the United States Department of Education (USDOE).
As a result of reviewing these materials, the federal Family
Policy Compliance Office in 2003 issued instructions to the
California Department of Education (CDE) addressing areas of
FERPA where California statute fell short of compliance. Under
the current reauthorization (2004) of IDEA, states are required
to provide assurances to USDOE as to compliance with all
relevant federal requirements.
Since no changes have been enacted to bring state statute into
full compliance with FERPA, USDOE has annually warned the CDE
that these previous outstanding issues must be resolved and that
this resolution is a condition of continued federal funding, and
has issued a Conditional Grant Award Letter to the CDE when
making the annual award of funds to California under IDEA. The
author and the Superintendent of Public Instruction, the sponsor
of this bill, have expressed concern that this status
jeopardizes the continuation of California's special education
funding, currently in excess of $1.13 billion annually. This
bill proposes to bring state Education Code into conformity with
FERPA, and thus eliminate the conditions that USDOE has placed
on the state's IDEA grant.
It should be noted that a significant IDEA funding augmentation
is included in the American Recovery and Reinvestment Act (ARRA)
recently passed into law. It remains unclear how this funding,
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currently estimated to be approximately $1.3 billion for
California local education agencies, would be treated with
respect to any action that USDOE might take if the conditions
placed on the state's IDEA Grant were not met. It is possible
that USDOE, if it were to sanction California for
non-conformance with FERPA by reducing or eliminating the
state's IDEA grant, could extend any such sanction to the
augmented IDEA funds provided in the ARRA. The USDOE is in the
process of developing ARRA guidance for the states, and the CDE
is working to clarify this issue.
The author carried a substantially similar bill in 2008. The
Governor vetoed that bill and stated that, "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 requirement, and therefore could expose the State
to significant reimbursable state mandate costs." This bill, as
was also the case with the author's 2008 bill, is determined by
the Legislative Counsel Bureau to be non-fiscal and to not
constitute a state-mandated local program. It should be noted
that mandates imposed on local governmental entities are not
reimbursable under the California Constitution if those mandates
are derived from federal requirements. It is, however, unclear
whether the changes proposed in this bill dealing with agents of
the juvenile justice system for the purposes of truancy
mediation, juvenile adjudication, and reviewing compliance with
compulsory education requirements are derived from or go beyond
federal requirements; if the latter is the case, then this bill
might generate costs to the state. This bill is double referred
to the Committee on the Judiciary; if this Committee chooses to
pass this bill, the Committee on the Judiciary would be better
positioned to analyze the extent to which the changes made in
this bill exceed federal requirements in the area of juvenile
justice.
Related legislation: AB 2630 (Salas), vetoed in 2008, was
substantially similar to this bill. AB 1663 (Evans), Chapter
454, Statutes of 2007, made various revisions to state special
education statutes to bring them in conformity with the 2004
reauthorization of IDEA and implementing federal regulations
that became effective in 2006. Earlier versions of this bill
also included language dealing with these FERPA issues; that
language was deleted from the bill on the Senate Floor after
comments from the Department of Finance that these issues were
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substantive enough to require separate legislation.
REGISTERED SUPPORT / OPPOSITION :
Support
American Federation of State, County and Municipal Employees
(AFSCME), AFL-CIO
Superintendent of Public Instruction Jack O'Connell (Sponsor)
Opposition
None on file
Analysis Prepared by : Gerald Shelton / ED. / (916) 319-2087