Request By:
Richard Jett
Superintendent, Wolfe County Schools
Campton, Kentucky 41301
Opinion
Opinion By: Steven L. Beshear, Attorney General; By: Robert L. Chenoweth, Assistant Deputy Attorney General
You have asked the Office of the Attorney General to consider the qualifications of a member of the Wolfe County Board of Education. You state it is your assessment the board member in question does not meet the educational qualifications prescribed in KRS 160.180(1)(c). You ask what action can be taken to nullify the right of this individual to continue to serve as a school board member.
In a telephone conversation concerning this matter, you stated you were reluctant to forward to us for review the educational records concerning this board member due to the prohibitions expressed in the Family Educational Rights and Privacy Act of 1974, (FERPA), codified at 20 U.S.C. § 1232g. You ask this Office to consider the application of this federal education law to the issue in question. It is our opinion that unless the board member whose educational qualifications are in issue consents in writing to have released the relevant educational records, you may not provide this Office, orally or in writing, personally identifiable information or educational records relating to this board member. If the board member does not consent in writing to allow you to provide us copies of the educational records, it will be necessary for this Office to initiate a quo warranto action so as to bring into issue before a court of competent jurisdiction the question of whether this board member is a usurper of that office due to the failure to meet the required educational qualifications.
KRS 160.180(1)(c) reads as follows:
"(1) No person shall be eligible to membership on a board of education:
". . . .
"(c) Unless he has completed at least the eighth grade in the common schools as shown by the records of the school in which the eighth grade was completed or by affidavits of the teacher or teachers under whom the work was completed, or unless he has the equivalent of an eighth grade education as determined by an examination held under rules and regulations adopted by the state board for elementary and secondary education. . . ."
The former Kentucky Court of Appeals has stated in reference to this subsection that the burden is on the board member to show that the educational qualifications are met. See, for example,
Commonwealth v. Hester, Ky., 406 S.W.2d 846 (1966). The Kentucky appellate court has further stated this burden can be satisfied in one of three ways: (1) by the school record; (2) by the affidavit of his teacher; (3) by the required examination. See
Commonwealth v. Bogie, 287 Ky. 103, 152 S.W.2d 286, 287 (1941). However, this Office, which has the sole responsibility and authority to bring an ouster or quo warranto action against a school board member, KRS 415.050, is not required to accept as conclusive any affidavits as to at least eighth grade completion. See
Chadwell v. Commonwealth, 288 Ky. 644, 157 S.W.2d 280 (1941). And, in regard to the situation you have written to us about, as we understand it, there are no affidavits anyway. Also, there is no knowledge by you that an examination held under the rules and regulations of the state board has been satisfactorily passed by the board member in question. See the regulations of the State Board of Education, 705 KAR 7:040, copy attached. Thus, we come down to "the records of the school" and it is this portion of the statute that triggers our consideration of FERPA.
The Family Educational Rights and Privacy Act of 1974 (FERPA) applies to all educational agencies and institutions that receive federal funds. 20 U.S.C. § 1232g(a)(3). This federal education law controls the inspection and review of education records and personally identifiable education information relating to a student. 20 U.S.C. § 1232g(4). The rights under the statute are given to the parents of a student unless the student has reached the age of 18 or is enrolled in an institution of post secondary education in which instances the rights are vested with the "student" himself or herself. 20 U.S.C. § 1232g(d). The statute applies to students who are or have been in attendance at a school. 20 U.S.C. § 1232g(a)(2).
There are certain circumstances under which the prior consent of a student is unnecessary before releasing access to student records or personally identifiable information. These circumstances are set out in 20 U.S.C. § 1232g(b)(1) which reads in full as follows:
"(b)(1) No funds shall be made available under any applicable program to any educational agency or institution which has a policy or practice of permitting the release of education records (or personally identifiable information contained therein other than directory information, as defined in paragraph (5) of subsection (a) of this section) of students without the written consent of their parents to any individual, agency, or organization, other than to the following --
"(A) other school officials, including teachers within the educational institution or local educational agency, who have been determined by such agency or institution to have legitimate educational interests;
"(B) officials of other schools or school systems in which the student seeks or intends to enroll, upon condition that the student's parents be notified of the transfer, receive a copy of the record if desired, and have an opportunity for a hearing to challenge the content of the record;
"(C) authorized representatives of (i) the Comptroller General of the United States, (ii) the Secretary, (iii) an administrative head of an education agency (as defined in section 1221e-3(c) of this title), or (iv) State educational authorities, under the conditions set forth in paragraph (3) of this subsection;
"(D) in connection with a student's application for, or receipt of, financial aid;
"(E) State and local officials or authorities to whom such information is specifically required to be reported or disclosed pursuant to State statute adopted prior to November 19, 1974
"(F) organizations conducting studies for, or on behalf of, educational agencies or institutions for the purpose of developing, validating, or administering predictive tests, administering student aid programs, and improving instruction, if such studies are conducted in such a manner as will not permit the personal identification of students and their parents by persons other than representatives of such organizations and such information will be destroyed when no longer needed for the purpose for which it is conducted;
"(G) accrediting organizations in order to carry out their accrediting functions;
"(H) parents of a dependent student of such parents, as defined in section 152 of Title 26; and
"(I) subject to regulations of the Secretary, in connection with an emergency, appropriate persons if the knowledge of such information is necessary to protect the health or safety of the student or other persons.
"Nothing in clause (E) of this paragraph shall prevent a State from further limiting the number or type of State or local officials who will continue to have access thereunder."
The only one of these circumstances appearing to provide a basis for permitting this Office to inspect or have related to us the contents of educational records rests in (b)(1)(E) -- "State and local officials or authorities to whom such information is specifically required to be reported or disclosed pursuant to State statute adopted prior to November 19, 1974." However, this possible basis is eliminated upon a consideration of the federal regulations relating to FERPA. The regulations at 34 CFR 99.31 address when prior consent for disclosure is not required. The regulation basically mirrors the language of 20 U.S.C. § 1232g(b)(1) and its subparts and at § 99.31(5) reads:
"To State and local officials or authorities to whom information is specifically required to be reported or disclosed pursuant to State statute adopted prior to November 19, 1974. This paragraph applies only to statutes which require that specific information can be disclosed to State or local officials and does not apply to statutes which permit but do not require disclosure. Nothing in this paragraph shall prevent a State from further limiting the number or type of State or local officials to whom disclosures are made under this paragraph." (Emphasis ours.)
In view of the limiting "explanation" language of this federal regulation, we cannot point to any statutory provision "which require that specific information be disclosed" to the Attorney General. Therefore, it is our belief you have no right to provide this Office in writing or verbally any information contained in the educational records of a former student who now is serving as a board member unless there is in writing the prior written consent of the board member to do so.
In light of the above conclusion, we request you to seek the prior written consent of the board member in question to permit you to provide this Office with copies of all pertinent educational records relating to whether the board member meets the educational qualifications set out in KRS 160.180(1)(c). In the absence of such consent, it will leave this Office with no choice but to file an ouster action and as a part thereof seek a request for admission that the board member lacks the necessary educational qualifications to continue to hold office. See
Commonwealth v. Rice, Ky., 415 S.W.2d 618 (1966).
If you have any questions concerning this matter, please contact us.