BILL ANALYSIS �
SENATE COMMITTEE ON EDUCATION
Alan Lowenthal, Chair
2011-2012 Regular Session
BILL NO: AB 1937
AUTHOR: Silva
AMENDED: April 30, 2012
FISCAL COMM: No HEARING DATE: June 20, 2012
URGENCY: No CONSULTANT:Lynn Lorber
NOTE : This bill was previously heard by this Committee on
June 13, 2012, and failed passage by a vote of 2-4. The bill
was granted reconsideration.
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 : Access to pupil records.
SUMMARY
This bill authorizes schools to release information from pupil
records to a contractor, consultant or other party to whom a
school has outsourced institutional services or functions.
BACKGROUND
The federal Family Educational Rights and Privacy Act (FERPA)
prohibits federal funds from being provided to any educational
agency or institution which has a policy or practice of
permitting the release of a pupil's educational records to any
individual, agency, or organization without the written
consent of the pupil's parents. FERPA exempts from the
general parental consent requirement certain kinds of
disclosures, including disclosures to state and local
officials for the purposes of conducting truancy proceedings,
a criminal investigation, auditing or evaluating an
educational program, or in relation to the application for
financial aid. (United States Code, Title 20, Section 1232g
and Code of Federal Regulations, Title 34, Sections 99.31)
Current state law prohibits a school district from permitting
access to pupil records to a person without parental consent
AB 1937
Page 2
or under judicial order, with some exceptions:
1) School districts are required to permit access to records
relevant to the legitimate educational interests of
specified requesters, including:
a) School officials and employees of the
districts, members of a school attendance review
board and any volunteer aide (as specified),
provided that the person has a legitimate
educational interest to inspect a record.
b) Officials and employees of other public schools
or school systems where the pupil intends to or is
directed to enroll.
c) Other federal, state and local officials as
specified.
d) Parents of a pupil 18 years of age or older who
is a dependent.
e) A pupil 16 years of age or older or having
completed the 10th grade who requests access.
f) A district attorney, judge or probation
officer, in relation to truancy proceedings.
g) A prosecuting agency for consideration against
a parent for failure to comply with compulsory
education laws.
h) A probation officer, district attorney, or
counsel of records for a minor, in relation to a
criminal investigation or in regard to declaring a
person a ward of the court or involving a violation
of a condition of probation.
i) A county placing agency to complete the health
and education summary or educational case management
responsibilities. (Education Code � 49076)
2) School districts are authorized to release information
from pupil records to the following:
a) Appropriate persons in connection with an
AB 1937
Page 3
emergency if the information is necessary to protect
the health or safety of a pupil or other person.
b) Agencies or organizations in connection with
the application of a pupil for, or receipt of,
financial aid.
c) The county elections official for the
identification of pupils who are eligible to
register to vote.
d) Accrediting associations in order to carry out
accrediting functions.
e) Organizations conducting studies on behalf of
educational agencies or institutions for the purpose
of developing, validating or administering
predictive tests, administering student aid
programs, and improving instruction.
f) Officials and employees of private schools or
school systems where the pupil is enrolled or
intends to enroll. (EC � 49076)
Current law requires school districts to notify parents in
writing of their rights, including the types of pupil records
kept by the district, the position of the official responsible
for the records, the policies for reviewing and expunging
records, and the criteria used by the district to define
"school officials and employees" and to determine "legitimate
educational interest." (EC � 49063)
ANALYSIS
This bill authorizes schools to release information from pupil
records to a contractor, consultant or other party to whom a
school has outsourced institutional services or functions.
Specifically, this bill:
1) Adds to the list of people to whom a school district may
release information from pupil records a contractor,
consultant, or other party to whom a local educational
agency or institution has outsourced institutional
services or functions, provided that this party complies
with all of the following:
AB 1937
Page 4
a) Performs an institutional service or function
for which the school or school district would
otherwise use employees.
b) Is under the direct control of the school or
school district with respect to the use and
maintenance of educational records.
c) Uses the information only for purposes for
which the disclosure was made, and does not disclose
the information to any other party without the prior
written consent of the parent or eligible pupil.
2) Requires a school or school district to use reasonable
methods to ensure that a contractor, consultant, or other
party to whom it has outsourced institutional services or
functions obtains access only to those educational
records in which that party has a legitimate educational
interest.
3) Requires a school or school district that does not use
physical or technological access controls to ensure that
its administrative policy for controlling access to
information from the educational records is effective and
that it remains in compliance with the legitimate
educational interest requirement.
4) Requires access by a contractor or consultant to any
records of a pupil with exceptional needs to be subject
to existing procedural safeguards for those pupils.
STAFF COMMENTS
1) Need for the bill . According to the author, "Under
federal law, outside parties, such as School Resource
Officers (SROs), may access student records provided the
arrangement meets certain requirements and the district
has included appropriate information in its annual notice
to parents. Since outside parties with a legitimate
educational interest are allowed access under federal
law, California law should permit such access as well.
Non-district employees, such as SROs, are not explicitly
authorized to access student records under
California law even when there is a legitimate
educational interest. Therefore, it is difficult for
AB 1937
Page 5
SROs to perform their duties effectively. SROs are
school-based law enforcement officers, or school security
professionals."
2) Should contractors have access to pupil records ? While
the author's statement references the need for school
resource officers to have access to information from
pupil records, this bill is not limited to contracted
school resource officers. This bill authorizes, but does
not require, schools to allow unspecified contractors,
consultants or other parties to have access to
information from pupil records if there is a legitimate
educational purpose and other criteria is met (see #4).
Should people who contract with or provide consultation
to schools, but are not directly employed by schools,
have access to information from pupil records if a school
determines the person has a legitimate educational
interest?
3) Legitimate educational interest . This bill, as well as
the federal Family Educational Rights and Privacy Act
(FERPA), requires the school or school district to use
reasonable methods to ensure that a contractor or
consultant obtains access only to the information in
which that party has a legitimate educational interest
(not the entire record). While the educational interest
is attributed to the individual seeking access to the
records, rather than the educational interest of the
pupil, it is the responsibility of the school or school
district to make that determination (not the individual
requesting access to the records). Further, current law
requires school districts to notify parents, in writing,
of their rights regarding pupil records, including the
criteria used by the district to define "school officials
and employees" and determine "legitimate educational
interest."
4) Sufficient safeguards ? This bill, as well as FERPA,
authorizes school districts to release information from
pupil records to contractors, consultants and other
parties only if the party is under the direct control of
the district or school with respect to the use of
educational records, the party uses the information only
for purposes for which the disclosure was made and does
not disclose the information to any other party, and
requires the school district to use reasonable methods to
AB 1937
Page 6
ensure that the party obtains access only to the
information in which that party has a legitimate
educational interest.
5) Formal relationship with school district . This bill
authorizes school districts to release information from
pupil records to contractors, consultants and other
parties to whom a school has outsourced institutional
services or functions. The terms "contractor" and
"consultant" could indicate some type of formal
relationship with the school district, such as a
contractual agreement to perform the outsourced function
or services. While this bill requires schools to ensure
the "other party" has a legitimate educational interest
and meets other criteria, the term is broad and could
ease access to pupil records inappropriately. Therefore,
staff recommends an amendment to strike reference to
"other party." Further, staff recommends an amendment to
require a contractor or consultant to have a formal
written agreement or contract with the school district
regarding the provision of outsourced services or
functions by the contractor or consultant.
6) Conforming to FERPA . This bill largely conforms to FERPA
but does not include "volunteers" in the list of
individuals who may be granted access to information from
pupil records. Additionally, this bill does not deem
contractors or consultants as "school officials" as FERPA
does. Further, this bill clarifies that access to the
records of a pupil with exceptional needs is subject to
existing state procedural safeguards for those pupils.
7) Related legislation . AB 733 (Ma) makes numerous
technical changes to conform to state law with the
federal Family Education Rights and Privacy Act regarding
access to pupil records without parental consent or
judicial order, as well as make more substantive changes
that are permitted by federal law. AB 733 passed both
houses of the legislature, was pending in the Assembly
for concurrence of Senate amendments, and returned to the
Senate presumably for purposes of amendments.
8) Prior legislation . AB 261 (Salas, 2009) would have made
several changes to conform to FERPA but was vetoed by the
AB 1937
Page 7
Governor, whose veto message read:
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.
AB 2630 (Salas, 2008) was substantially similar to AB 261
from 2009. AB 2630 was vetoed with the same
veto message as was provided for AB 261 in 2009.
SUPPORT
California County Superintendents Educational Services
Association
California School Boards Association
Los Angeles County Office of Education
Orange County Department of Education
San Francisco Unified School District
OPPOSITION
American Civil Liberties Union
Labor Community Strategy Center
Public Advocates