Request By:
Mr. Dan C. McCubbin
General Counsel
Jefferson County Public Schools
3332 Newburg Road
P.O. Box 34020
Louisville, Kentucky 40232-4020
Opinion
Opinion By: David L. Armstrong, Attorney General; Kevin M. Noland, General Counsel
As General Counsel for the Jefferson County Public Schools, you have requested an opinion from this office on the following issues:
(1) What are the rights of a non-custodial parent in requesting access to his or her child's education records?
(2) What type of documentation should the school require of the custodial parent to establish that the parent is in fact the custodial parent?
(3) Should school officials deny physical access to the student by the non-custodial parent during the school day, on school grounds or on a school bus, when proper documentation from the custodial parent is on file?
(4) Should Kentucky personnel provide information concerning a student in response to a telephone inquiry?
Kentucky has no statutes that directly address these concerns. However, on questions of information about students, OAG 75-224 cited the Education Amendments of 1974 enacted by Congress as authority to deny student records to credit bureaus.
The Education Amendments, now called the Family Educational and Privacy Rights Act, 20 U.S.C.A. § 1232g (Act), denies funding to (1) any school that denies students or parents access to student records and (2) any school that provides information on students to persons not entitled to such information. The pertinent sections are as follows:
"(a) Conditions for availability of funds to educational agencies or institutions; inspection and review of education records; specific information to be made available; procedure for access to education records; reasonableness of time for such access; hearings; written explanations by parents; definitions. (1)(A) No funds shall be made available under any applicable program to any educational agency or institution which has a policy of denying, or which effectively prevents, the parents of students who are or have been in attendance at a school of such agency or at such institution, as the case may be, the right to inspect and review the education records of their children. If any material or document in the education record of a student includes information on more than one student, the parents of one of such students shall have the right to inspect and review only such part of such material or document as relates to such student or to be informed of the specific information contained in such part of such material. Each educational agency or institution shall establish appropriate procedures for the granting of a request by parents for access to the education records of their children within a reasonable period of time, but in no case more than forty-five days after the request has been made.
"(b) Release of education records; parental consent requirement; exceptions; compliance with judicial orders and subpoenas; audit and evaluation of Federally-supported education programs; recordkeeping. (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 educational records (or personally identifiable information contained therein other than directory information, as defined in paragraph (5) of subsection (a)) of students without the written consent of their parents to any individual, agency, or organization, . . ."
It would be in compliance with both cited sections of the Act not to give information concerning a student in response to a telephone inquiry, since the school cannot be positive of the caller's identity.
However, if the requesting party is a parent of the child in question and the parent makes the request in such a manner, e.g., in person or in writing, that the school may be certain of his or her identity, then the federal Act requires access to the child's educational records for the parent, without regard to custody of the child. See, 20 U.S.C.A. § 1232g(a).
As to the question of access, i.e., visitation, during school hours, the statutes on dissolution and custody grant to the non-custodial parent a right to reasonable visitation, while vesting in the custodial parent decision-making powers about the child's education and health. See KRS 403.320. Of course, visitation rights may be terminated or modified by court order. If documentation, i.e., a court order, is on file with the school instructing that the non-custodial parent either has no visitation rights, shall not have access to the child during the school day, or shall have access to the child only during certain times which do not include the school day, then it is important that school officials act consistently with such court order.
As to the question regarding documentation the school should require to establish who is the custodial parent, it is encouraged that school policy be formulated to take the school out of the tug-of-war between custodial and non-custodial parents. As a matter of local school district policy, the school should receive from the custodial parent a copy of the custody decree, so as to establish which parent has legal custody of the child, as well as any other written instructions regarding the child's welfare.
We hope this information is helpful to you.