BILL ANALYSIS �
AB 733
Page 1
Date of Hearing: April 27, 2011
ASSEMBLY COMMITTEE ON EDUCATION
Julia Brownley, Chair
AB 733 (Ma) - As Amended: March 25, 2011
�This bill is double referred to the Assembly Judiciary
Committee and will be heard as it relates to the issues under
that committee's 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
adopted after November 19, 1974.
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, by:
a) Defining truancy mediation to mean a program operated
under Section 48263.5 that concerns the juvenile justice
system and that system's ability to effectively serve,
prior to adjudication, the pupil whose records are
released.
b) Clarifying that a probation officer or district
attorney's office may access records for the purposes of
conducting an investigation for juvenile adjudication,
declaring a person a ward of the court, or involving a
violation of a condition of probation, where the records
are relevant to the legitimate educational interests of the
pupil, as these investigations concern the juvenile justice
system and that system's ability to effectively serve,
prior to adjudication, the pupil whose records are released
c) Reinforcing the requirement that access to pupil records
under these exceptions require that the individual
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accessing that information have a legitimate educational
interest in the pupil's information.
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, and limits the information that may be so
obtained to a pupil's name, address, telephone number, e-mail
address, and date of birth.
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 it is permitted by
federal law and 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.
EXISTING LAW protects, under the federal Family Educational
Rights and Privacy Act (FERPA) (20 U.S.C. � 1232g; 34 CFR Part
99) and state law, the privacy of pupil education records by
requiring written permission from the parent or eligible
student, with specified exceptions, in order for a school
district to release any information from a student's education
record.
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).
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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.
FERPA protects the privacy of student education records, and
applies to all schools that receive funds under programs
administered by the U.S. Department of Education. Under FERPA,
schools generally must have written permission from the parent
or eligible student in order to release any information from a
pupil's record; however, FERPA provides limited exceptions to
this requirement (and thus allows schools to disclose records
without consent) for specific requesters with legitimate
educational interests, including school officials, other schools
to which a student is transferring, specified officials for
audit or evaluation purposes, appropriate parties in connection
with the pupil's financial aid, entities conducting certain
studies for or on behalf of the school, accrediting
organizations, requesters in compliance with a judicial order or
lawfully issued subpoena, appropriate officials in cases of
health and safety emergencies, and state and local authorities
within the juvenile justice system and pursuant to specific
State law. State law further clarifies these exceptions; the
USDOE has determined that this state law does not conform to
federal law.
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 for
Special Education in California. As a result USDOE has issued a
Conditional Grant Award Letter to the CDE when making the annual
award of funds to California under IDEA; this type of grant
award means that the funding is provided on the condition that
outstanding issue will be resolved. 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 $1.21 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; the provisions in this bill have been
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developed by the CDE through discussion with USDOE.
Substantially similar bills by a different author were passed by
the Legislature in 2008 and 2010. The former Governor vetoed
both bills, stating 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
2008 and 2010 bills, is determined by the Legislative Counsel
Bureau to be non-fiscal and to not constitute a state-mandated
local program; neither previous bill was requested or heard by
the Assembly Appropriations Committee or the Senate
Appropriations Committee. 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. According to the Assembly Judiciary
Committee analysis of AB 261 (Salas) in 2010, "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. Finally, even if one were to accept
the DOF's undocumented assertion that this bill would impose
costs of "millions of dollars" on local school agencies, those
unspecified "millions" are still less than the �$1.21 billion]
the state could lose in IDEA grants."
In early April of this year, USDOE announced that it proposes to
amend the regulations implementing FERPA. According to USDOE,
"These proposed amendments are necessary to ensure that the
Department's implementation of FERPA continues to protect the
privacy of education records, as intended by Congress, while
allowing for the effective use of data in statewide longitudinal
data systems?These proposed amendments would enable authorized
representatives of State and local educational authorities, and
organizations conducting studies, to use �longitudinal] data to
achieve these important outcomes while protecting privacy under
FERPA?" USDOE added that, "Over time, interpretations of FERPA
have complicated valid and necessary disclosures of student
information without increasing privacy protections and, in some
cases, dramatically decreased the protections afforded
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students." USDOE initiated the required 45 day comment period
on these proposed regulations, and will proceed with the
rulemaking process into the near future; expectations are that
this rulemaking process will extend, at least, to the end of
this calendar year. It is important to note that the
regulations proposed by the USDOE focus on the federally allowed
exceptions to the FERPA requirement for obtaining parental
signatures prior to the release of pupil record information;
ironically, the USDOE is urging California to conform its state
law to those same exceptions, but in their existing form and as
interpreted under current regulations. It is very possible that
California statute, even with the changes proposed by this bill,
will not conform to federal law and regulations as they change
under the federal rulemaking process through this year; in other
words, this bill may be aiming at a moving target of federal
regulations. The Legislature may wish to consider whether
holding this bill until the second year of the current
Legislative Session, and thus waiting until the current federal
rulemaking process is completed, is a more efficient approach to
conforming state law to federal law and regulations in this
area.
This bill is double referred to the Assembly Judiciary
Committee; if the Committee on Education chooses to pass this
bill, then the Judiciary Committee will analyze this bill with
respect to issues within its jurisdiction.
In amending Education Code Section 49076, this bill creates a
technical conflict with AB 143 (Fuentes), that was passed by
this Committee and by the Assembly Judiciary Committee; AB 143
is currently pending on the Floor of the Assembly. If both
bills continue to move forward, then technical amendments should
be made to one or both bills to eliminate this conflict.
The California School Boards Association has adopted a support
if amended position on this bill, and has recommended two
amendments that would broaden the exceptions to the requirement
for school districts to obtain written permission prior to
releasing pupil record information. Committee staff recommends
against any amendment that would broaden exceptions beyond the
provisions in this bill; according to the CDE, this bill
contains the provisions that are required to satisfy the
conditions placed on the state's IDEA grant award, and that have
been developed by the CDE through discussion with USDOE.
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Related and previous legislation : AB 143 (Fuentes), pending on
the Assembly Floor, amends California Education Code with
respect to legal counsel's access to pupil records and with
respect to requirements relating to the confidentiality of pupil
records. AB 261 (Salas), vetoed in 2009, and AB 2630 (Salas),
vetoed in 2008, would have amended the California Education Code
to conform with the FERPA requirements relating to the
confidentiality of pupil records.
REGISTERED SUPPORT / OPPOSITION :
Support
California School Boards Association (if amended)
Opposition
None on file
Analysis Prepared by : Gerald Shelton / ED. / (916) 319-2087