BILL ANALYSIS
AB 261
Page 1
GOVERNOR'S VETO
AB 261 (Salas)
As Amended July 14, 2009
2/3 vote
-----------------------------------------------------------------
|ASSEMBLY: |76-0 |(April 20, |SENATE: |36-0 |(July 16, |
| | |2009) | | |2009) |
-----------------------------------------------------------------
-----------------------------------------------------------------
|ASSEMBLY: |77-0 |(August 17, | | | |
| | |2009) | | | |
-----------------------------------------------------------------
Original Committee Reference: ED.
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.
AB 261
Page 2
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.
The Senate amendments :
1)Clarify that the prohibition on a local education agency
(LEA), disclosing information into an interagency data system,
apply to "personally identifiable pupil information from
educational records", and apply only to the extent that such
disclosure is not permitted by FERPA or its associated
regulations.
2)Limit the directory information that a school district may
release from pupil records to a county elections official to
pupil name, address, phone number, e-mail address and date of
birth.
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.
AS PASSED BY THE ASSEMBLY, this bill was substantially similar
to the version passed by the Senate.
FISCAL EFFECT : This bill is keyed non-fiscal.
AB 261
Page 3
COMMENTS : Under a 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;
USDOE has also 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 also be noted that a significant IDEA funding
augmentation is included in the American Recovery and
Reinvestment Act (ARRA) recently passed into law. According to
the CDE, this funding, currently estimated to be approximately
$1.3 billion for California local education agencies, would not
be subject to any action that USDOE might take if the conditions
placed on the state's IDEA Grant are not met. For example,
USDOE, if it were to sanction California for non-conformance
with FERPA by reducing or eliminating the state's IDEA grant,
would not extend any such sanction to the augmented IDEA funds
provided in the ARRA.
The author carried a substantially similar bill in 2008; the
Governor vetoed that bill. The Department of Finance (DOF) in
AB 261
Page 4
its analysis of last year's bill raised concerns 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."
GOVERNOR'S 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 requirements, and therefore
could expose the State to significant reimbursable state mandate
costs."
Analysis Prepared by : Gerald Shelton / ED. / (916) 319-2087
FN: 0003324