BILL ANALYSIS
SENATE COMMITTEE ON EDUCATION
Gloria Romero, Chair
2009-2010 Regular Session
BILL NO: AB 261
AUTHOR: Salas
INTRODUCED: February 11, 2009
FISCAL COMM: No HEARING DATE: June 17, 2009
URGENCY: No CONSULTANT: James Wilson
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 : Pupil Records
SUMMARY
This bill makes various amendments to the Education Code to
conform with the federal Family Education Rights and
Privacy Act (FERPA) requirements relating to the
confidentiality of pupil records.
BACKGROUND
Current law prohibits a school district from permitting
access to pupil records to any person without written
parental consent or a judicial order, subject to certain
exemptions. The federal Family Education Rights and Privacy
Act (FERPA) protects the privacy of student records by
prohibiting a person from having access to pupil records
without written parental consent or a court order, subject
to narrow exemptions. Under the 1997 authorization of the
federal Individuals with Disabilities Education Act (IDEA),
states were required to submit state policies and
procedures to the Office of Special Education Programs in
the United States Department of Education (USDOE). After
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.
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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.
ANALYSIS
This bill revises the Education Code to conform to the
federal Family Education Rights and Privacy Act (FERPA) by:
1) Clarifying that existing exceptions to the existing
prohibition on a school district providing access to
pupil records must conform to federal law.
2) Providing that agents of the juvenile justice system
may have access to pupil record for the purposes of a
truancy mediation program, as defined to be consistent
with federal law.
3) Clarifying that a district attorney's office may have
access to pupil records for purposes of conducting an
investigation for juvenile adjudication, declaring a
person a ward of the court, or investigating a
condition of probation, so long as the records are
relevant to the legitimate educational interests of
the pupil and the disclosure of those records is
permitted pursuant to, and consistent with, federal
regulations.
4) Further providing that law enforcement records of a
pupil may be released to a probation officer or
district attorney's office without parent or pupil
consent, and without a subpoena or a court order.
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5) Revising the authorization of a school district to
release pupil records information to a county
elections official for the purpose of identifying
potential voters in order to give the pupil's parent,
or the pupil if 18 years or age or older, the
opportunity to "opt out" of voter registration
activity.
6) Limiting 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.
7) Authorizing a school district, district superintendent
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.
8) Limiting the release of pupil record information to a
designated peace officer or law enforcement agency to
those situations where prior written permission from
at least one parent has been obtained, where an
emergency requires the information to protect the
health and safety of the pupil or where a lawfully
issued subpoena or court order has been obtained.
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STAFF COMMENTS
1) Previous legislation . 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 Individuals with
Disabilities Education Act (IDEA) and implementing
federal regulations that became effective in 2006.
Earlier versions of AB 1633 included language dealing
with these Family Education Rights and Privacy Act
(FERPA) issues and that language was deleted from the
bill on the Senate Floor after comments from the
Department of Finance that these issues were
substantive enough to require separate legislation.
AB 2630 (Salas) of 2008, was substantially similar to this
bill. AB 2630 was vetoed by the Governor with the
following veto message:
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.
2) State Mandated Costs. This bill has been determined
by Legislative Counsel to be non-fiscal and to not
contain a state-mandated local program. Mandates are
not reimbursable if those mandates imposed by federal
law. It is not clear, however, if the bill's
provisions 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; which is better positioned to analyze the
extent to which the changes made in this bill exceed
federal requirements in the area of juvenile justice.
SUPPORT
Advisory Commission on Special Education
All Saints Church Foster Care Project
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American Federation of State, County and Municipal
Employees
California School Boards Association
Superintendent of Public Instruction (Sponsor)
OPPOSITION
None received.