BILL ANALYSIS
SENATE JUDICIARY COMMITTEE
Senator Ellen M. Corbett, Chair
2009-2010 Regular Session
AB 261
Assemblymember Salas
As Amended June 22, 2009
Hearing Date: July 7, 2009
Education Code
NRB:jd
SUBJECT
Pupil Records; Privacy Rights
DESCRIPTION
This bill, sponsored by the Superintendent of Public
Instruction, would amend various provisions of state law
governing permissible disclosure of student records in order to
comply with federal law and preserve state eligibility for more
than $1.13 billion in annual federal special education funding.
BACKGROUND
Pursuant to the 1997 reauthorization of the Individuals with
Disabilities Education Act (IDEA), Congress required states to
prove compliance with federal law by submitting a copy of state
policies and procedures to the Office of Special Education
Programs in the federal Department of Education (USDOE). After
reviewing the state's policies and procedures in 2003, the
federal Family Policy Compliance Office issued instructions
addressing areas of the Family Educational Rights and Privacy
Act (FERPA) where California law fell short of compliance.
Under the most recent reauthorization of the IDEA, states are
required to provide assurances to USDOE as to compliance with
all federal requirements.
Because California statutes have not yet been conformed to all
the requirements of FERPA, the USDOE has annually warned the
state "previous outstanding items must be resolved and are
conditions of continued federal funding" and has issued a
Conditional Grant Award Letter to the California Department of
Education when awarding IDEA funds.
(more)
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If California law is not brought into compliance with federal
law, the USDOE is authorized to sanction the California
Department of Education or reduce or withhold federal IDEA funds
the state receives for the provision of special education
services. (See generally 34 C.F.R., Part 300, Secs. 300.178 -
300.186.)
This bill was approved by the Senate Committee on Education on
June 17, 2009.
CHANGES TO EXISTING LAW
Existing state law prohibits a school district from providing
student records to a person without written parental consent or
a court order, with specified exceptions. (Ed. Code Secs.
49076, 49076.5.)
Existing federal law , the Family Education Rights and Privacy
Act (FERPA), requires as a condition to receipt of federal
education funds that California law comply with federal student
record disclosure protections. (Code of Fed. Regs., Title 34,
Secs. 99.1, 99.62.)
This bill would make various changes to state law designed to
comply with FERPA.
Specifically, this bill seeks to conform state law exceptions
for disclosure of student records to federal law by:
(1)Providing, generally, that a school district is not authorized
to permit access to student records to a person without
written parental consent or under court order, except under
specified conditions, and to specified officials, as permitted
by Part 99 of Title 34 of the Code of Federal Regulations.
(2)Clarifying that existing access to student records under the
following circumstances comports with federal law because the
circumstances concern the juvenile justice system and the
system's ability to effectively serve, prior to adjudication,
the student whose records are released pursuant to, and
consistent with, Section 99.38 of Title 34 of the Code of
Federal Regulations as that section exists on January 1, 2009:
a. Access to student records by a district attorney's
office participating in a truancy mediation program, as
defined (Ed. Code Sec. 49076, subd. (a)(7));
b. Access to student records by a probation officer or
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district attorney's office 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 education interests of the student (Ed. Code
Sec. 49076, subd. (a)(9));
c. Access to student records by a judge or probation
officer for the purpose of conducting a truancy mediation
program or presenting evidence in a truancy petition, as
defined (Ed. Code Sec. 49076, subd. (a)(10)).
(3)Amending the existing exemption providing county election
officials access to student information for the purpose of
identifying students eligible to register to vote and for
conducting programs to offer students an opportunity to vote
so as to give the student's parent, or the student if 18 years
of age or older, the opportunity to opt out of this voter
registration activity (Ed. Code Sec. 49076, subd. (b)(3)).
(4)Amending existing exemptions that allow limited data sharing
between schools for purposes of a student transfer, or between
schools, a county office of education, or superintendent of
schools, for purposes of maintaining a data information
system, so long as the record and data sharing is for a
legitimate educational purpose and conforms to disclosure
requirements in state and federal law (Ed. Code Sec. 49076,
subd. (b)(6)(B), (c)).
(5)Clarifying that school officials shall not disclose personally
identifiable student information in an interagency data
information system authorized by existing state law unless
permitted by federal law.
(6)Clarifying that, without the prior written consent of a parent,
student identity and location information may only be
disclosed by a school district to law enforcement pursuant to
a subpoena or court order, or upon providing information to
the school district indicating there is an emergency in which
the information is necessary to protect the health or safety
of the student. (Ed. Code Sec. 49076.5, subd. (a). See CFR,
Title 34, Secs. 99.31 (10), and 99.36 (a).
COMMENT
1. Stated need for the bill
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According to the author, each year the state receives more than
$1.13 billion in federal funds for the provision of special
education services for students with special needs under the
IDEA. As a condition to continued receipt of these funds, the
author states that California law must be brought into
compliance with FERPA.
The author writes:
[T]he US Department of Education [has] specifically identified
three portions of the Education Code as being out of
compliance with FERPA regulations. As a result, the
Department placed the state's 2008-09 IDEA Grant on
conditional status.
In 2008 the State Superintendent [of Public Instruction]
sponsored AB 2630 (Salas) to address the compliance issues
raised by the Department, however, the measure was ultimately
vetoed by the Governor out of concerns that the bill
"appear(s) to expand beyond federal requirement, and therefore
could expose the State to significant reimbursable state
mandate costs."
The Superintendent continues to maintain that this language is
federally mandated and therefore should not be interpreted to
possibly create an unfunded state mandate.
The state submitted its 2009-10 IDEA Grant application and
referenced AB 261 to demonstrate that it is making every
effort to bring the state into compliance with federal law[.]
Although the introduction of this legislation can be referred
to in the grant application as the state's good-faith effort
to comply with federal law, true compliance will not occur
until it becomes law.
If these specific sections of the [E]ducation [C]ode continue
to go unaddressed it may jeopardize California's future IDEA
eligibility. This could include the sanctioning of the
California Department of Education or a reduction or
withholding of the amount of federal IDEA funds the state
receives for the provision of special education services.
By amending Sections 49076 and 49076.5 of the Education Code
the state will help ensure that California will retain its
federal IDEA grant funding eligibility so that it can continue
to receive the more than $1.3 billion in federal grant for the
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provision of special education services to students with
special needs.
2. Reimbursable State Mandate Question.
AB 261 is virtually identical to AB 2630 (Salas, 2008), which
was approved unanimously by the Senate Judiciary Committee last
year. That measure was ultimately vetoed by the Governor on the
ground that "its provisions appear to expand beyond federal
requirement, and therefore could expose the State to significant
reimbursable state mandate costs."
The State Constitution provides, with specified exceptions, that
the state must reimburse local governments when it mandates a
new program or higher level of service for the costs of the
program or the increased level of service. (Cal. Const., art.
XIII, Sec. 6, subd. (a).) However, a state mandate is not
reimbursable when the state adopts an implementing statute
pursuant to a federal mandate. (Hayes v. Com. on State Mandates
(1992) 11 Cal.App.4th 1564, 1593.)
There seems to be no dispute that, with two exceptions, AB 261's
provisions make no substantive change to existing state law and
merely clarify that the amended provisions have complied, and
continue to comply, with the requirements of federal law.
Because the clarifications in these sections do not create new
or expand existing duties on local government, they are not
reimbursable mandates.
Last year, however, the Department of Finance (DOF) expressed
concern that two provisions of AB 2630, which also are included
in AB 261, may create state mandates. These two provisions are
discussed below.
a. Disclosure of student information to law enforcement
In its analysis of AB 2630, the DOF asserted:
Section 2 of this bill amends Education Code Section
49076.5 to require designated peace officers to show prior
written consent from one parent, or show that they have
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obtained a lawfully issued subpoena or a court order in
order to obtain a student's information. Conversely,
federal law is not explicitly this prescriptive.
The DOF analysis appears to misapprehend both the scope of the
proposed measure and the requirements of federal law. Section
99.30 of Title 34 establishes the general rule that a school
must obtain parental written consent prior to disclosing
student information. Federal law provides an exception to
this rule if, among other exceptions, a school discloses
information pursuant to a "judicial order or a lawfully issued
subpoena." (34 C.F.R., Sec. 99.31 (9)(i).) Because
authorization for disclosure pursuant to written parental
consent or court order is required both by existing state and
federal law, there is no basis to the contention that these
provisions in AB 261 create a reimbursable state mandate.
Although not specifically mentioned in the DOF critique, both
AB 2630 and AB 261 include an exception permitting disclosure
to law enforcement where they "provide information indicating
that there is an emergency in which the information is
necessary to protect the health or safety of the pupil." (See
page 6, lines 22-31.) Federal law expressly requires that
schools be permitted to disclose specified student information
"if knowledge of the information is necessary to protect the
health or safety of the student or other individuals." (34
CFR, Secs. 99.31 (10), 99.36 (a).) Thus, as drafted, AB 261
authorizes school officials to disclose information to law
enforcement under circumstances specifically required by
federal law, and therefore the proposed amendment does not
establish a reimbursable state mandate.
b. Opt out for voting information.
The DOF analysis also contends that the amendment relating to
the release of information to county election officials may
impose a requirement that goes beyond federal law. AB 261
amends existing state law governing disclosure of student
information to election officials to require that the
student's parent, or the student if 18 years of age or older,
first be given the opportunity to opt out of this voter
registration activity. (See page 4, lines 32-34.) It is true
that Title 34 does not expressly reference disclosure of
student information for voter registration activities. It
does not follow, however, that this fact necessarily creates a
reimbursable state mandate.
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Pursuant to federal law, the type of student information that
may be disclosed to elections officials under state law can
only be disclosed if the student's parent, or the student, if
he or she is 18 years of age or older, first is given the
opportunity to opt out. (Title 34, Sec. 99.37.) Because AB
261 merely conforms state law to the federal law's opt out
requirement, this aspect of the measure also fails to
constitute a reimbursable state mandate.
It is perhaps based on the above rationale that the
Legislative Counsel determined that last year's AB 2630, and
this year's AB 261, are non-fiscal and do not contain a
state-mandated local program.
However, in an abundance of caution and a demonstration of
comity, the author has negotiated a proposed amendment with
the DOF designed to address the department's concerns about
this provision. The proposed amendment would explicitly
provide that a school district may only disclose "directory"
student information to elections officials, thus removing any
possible misunderstanding about whether the opt out language
in AB 261 stems directly from a federal mandate.
Specifically, the author would like to take the following
amendment:
At page 4, line 29, delete "official," and insert "official
may obtain directory information as defined pursuant to
Section 99.3 of Title 34 of the Code of Federal
Regulations"
At page 4, line 33, after "The" insert "directory"
In addition, the author may consider amending the bill to
clarify that if a school district exercises its option to
share student information with election officials, it may only
disclose the specific type of directory information necessary
to accomplish the relevant voter registration programs.
Support : None Known
Opposition : None Known
HISTORY
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Source : Superintendent of Public Instruction
Related Pending Legislation : None Known
Prior Legislation :
AB 2630 (Salas, 2008), was virtually identical to AB 261, and
was vetoed by the Governor.
AB 1663 (Evans, 2007), revised numerous provisions of the
Education Code pertaining to special education services to
conform state law to federal requirements relating to, among
others: pupil identification, assessment, and eligibility;
individualized education program development; procedural
safeguards; and pupil information confidentiality.
Prior Vote :
Assembly Education Committee (Ayes 10, Noes 0)
Assembly Judiciary Committee (Ayes 10, Noes 0)
Assembly Floor (Ayes 76, Noes 0)
Senate Education Committee (Ayes 9, Noes 0)
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