BILL ANALYSIS
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|SENATE RULES COMMITTEE | AB 261|
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CONSENT
Bill No: AB 261
Author: Salas (D)
Amended: 7/14/09 in Senate
Vote: 21
SENATE EDUCATION COMMITTEE : 9-0, 6/17/09
AYES: Romero, Huff, Alquist, Hancock, Liu, Maldonado,
Padilla, Simitian, Wyland
SENATE JUDICIARY COMMITTEE : 5-0, 7/7/09
AYES: Corbett, Harman, Florez, Leno, Walters
ASSEMBLY FLOOR : 76-0, 4/20/09 - See last page for vote
SUBJECT : Pupil records: privacy rights
SOURCE : Superintendent of Public Instruction
DIGEST : This bill 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.
ANALYSIS : 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.
This bill:
CONTINUED
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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.
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.
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
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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, 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. The Department of Finance
(DOF) in its analysis of last year's bill raised concerns
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that were in turn stated by the Governor in his 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." The current 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. In addition, the Assembly Judiciary
Committee stated in its analysis of this bill that, "While
the DOF analysis usefully elaborates on the Governor's
terse veto message, the arguments do not appear persuasive
enough to overturn the sound judgment of the Legislative
Counsel. It is not clear that AB 261 imposes any new
mandates on local school districts, as the DOF analysis
claims. Any new costs imposed on other entities appear to
be required by federal law, and are therefore not
reimbursable."
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 substantive enough to
require separate legislation.
FISCAL EFFECT : Appropriation: No Fiscal Com.: No
Local: No
SUPPORT : (Verified 7/14/09)
Superintendent of Public Instruction (source)
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American Federation of State, County and Municipal
Employees, AFL-CIO
ASSEMBLY FLOOR :
AYES: Adams, Ammiano, Anderson, Arambula, Beall, Bill
Berryhill, Tom Berryhill, Blakeslee, Block, Blumenfield,
Brownley, Caballero, Carter, Conway, Cook, Coto, Davis,
De La Torre, De Leon, DeVore, Duvall, Emmerson, Eng,
Evans, Feuer, Fletcher, Fong, Fuentes, Fuller, Furutani,
Gaines, Galgiani, Garrick, Gilmore, Hagman, Harkey,
Hayashi, Hernandez, Hill, Huber, Huffman, Jeffries,
Jones, Knight, Krekorian, Lieu, Logue, Bonnie Lowenthal,
Ma, Mendoza, Miller, Monning, Nava, Nestande, Niello,
Nielsen, John A. Perez, V. Manuel Perez, Portantino,
Price, Ruskin, Salas, Saldana, Silva, Skinner, Smyth,
Solorio, Audra Strickland, Swanson, Torlakson, Torres,
Torrico, Tran, Villines, Yamada, Bass
NO VOTE RECORDED: Buchanan, Charles Calderon, Chesbro,
Hall
DLW:nl 7/14/09 Senate Floor Analyses
SUPPORT/OPPOSITION: SEE ABOVE
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